THOMAS E. MORRIS, Magistrate Judge.
This case came before the Court on December 17, 2012 on ParkerVision's Motion to Compel Qualcomm's Responses to Interrogatory Nos. 4 and 9, and for Qualcomm to Produce Correspondence with Subpoenaed Third-Parties (Doc. #159, "September Motion to Compel"), as well as ParkerVision Inc.'s Motion to Compel Qualcomm's 30(b)(1) Deposition, Interrogatory Response, Production of Documents and Production of Schematics (Doc. #180, "November Motion to Compel").
Prior to the December hearing, the Court ordered the parties each to provide an in camera, ex parte submission of its list of accused devices that allegedly infringe the ParkerVision patents in this action (see Doc. #218, "Court Order on Pre-Hearing Matters"). ParkerVision was also directed to provide the Court with its complete sets of interrogatories and requests for production that had been propounded upon Qualcomm. See id. Despite having amassed a significant paper record in this case, the parties surprisingly managed to omit some of the discovery requests underlying the disputes raised by the instant motions. Both parties complied with the Court Order on Pre-Hearing Matters. The Court notes that the parties remain in disagreement concerning the "accused devices."
The Court notes that late on the evening before the December 17 hearing, the parties filed a Joint Notice of Resolution of Disputed Issues (Doc. #221, Joint Notice). In particular, the parties resolved the issue of "all communications between Qualcomm and counsel for Qualcomm and the third-parties upon [which] Qualcomm has served subpoenas in this litigation," the issue regarding ParkerVision's RFP No. 91, and the issue regarding the "production of all of the schematic diagrams printed by ParkerVision's reviewer during the agreed-upon inspection of schematics in San Diego." Joint Notice at 1-2. Thus, the disputed matters were narrowed to Interrogatory Nos. 4, 9, 17 and ParkerVision's Notice for a Rule 30(B)(1) deposition.
Motions to compel disclosures and other discovery under Rule 37(a) are committed to the sound discretion of the trial court. Commercial Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11
Having heard the parties' oral argument, having considered the positions of the parties as stated in the filings related to these motions to compel, and having conducted independent research, the Court rules as follows:
1. The September Motion to Compel is
On this issue, the Court finds the production of business records in lieu of a narrative response is appropriate and satisfies Qualcomm's obligation to respond to Interrogatory No. 4. Specifically, Rule 33(d) states:
Fed. R. Civ. P. 33(d). The value of visual depictions of complex electronics or machinery has been acknowledged by courts overseeing patent infringement disputes in cases such as this one. See Brunswick Corp. v. Chrysler Corp., 43 F.R.D. 208, 209 (E.D. Wis. 1967) (finding drawings furnished by defendants to plaintiff in patent infringement case were sufficient for plaintiff to determine whether the challenged product fell within the scope of the plaintiff's patent claims and defendants would not be required to further respond to the challenged interrogatories). Rule 33 is to be liberally construed. See Puerto Rico Aqueduct and Sewer Authority v. Clow Corp., 108 F.R.D. 304, 307 (D. P. R. 1985) (internal citation omitted). In this patent litigation, the Court finds a picture may very well be worth a thousand words and the schematics are responsive to ParkerVision's request. Reliance of Rule 33(d) is appropriate in this instance.
2. The September Motion to Compel is
September Motion to Compel at 3. In summary, Qualcomm has provided some financial data, but maintains some of the sought financial information is not kept by Qualcomm within the parameters set forth in Interrogatory No. 9. Id. at 19-23; September Opposition at 12-18. Qualcomm additionally argues ParkerVision seeks financial data beyond the scope of the alleged patent infringement in this case with the "speculative nature of ParkerVision's convoyed sales suggestion" that requests financial data on chipset products that "do not include any allegedly patent-practicing feature." September Opposition at 15-16.
Qualcomm is directed to respond to Interrogatory No. 9 with all financial data within its possession, custody or control to the extent such financial data is kept in the ordinary course of business by Qualcomm, or already exists within any of Qualcomm's databases, on the devices identified by Qualcomm in Exhibit B to ParkerVision's Interrogatory No. 2 (also identified as Exhibit A to the September Motion to Compel). Qualcomm is not required to reformat, reconfigure, or independently generate this financial data to satisfy the parameters set forth in Interrogatory No. 9. In other words, Qualcomm is directed to provide financial information to ParkerVision that already exists. It is understandable that Qualcomm may compile its financial data differently from the parameters identified in Interrogatory No. 9. In responding to this interrogatory, Qualcomm shall provide financial information for the smallest saleable unit, on which financial data is kept, that allegedly infringes a ParkerVision patent. The financial data shall be provided from the date of the patent application (or applications) that each Qualcomm device identified in Qualcomm's Exhibit B to Interrogatory No. 2 allegedly infringes.
Response is due by January 18, 2013. If all responsive financial information has already been provided to ParkerVision, Qualcomm shall affirmatively advise ParkerVision by sworn statement.
3. The November Motion to Compel is
4. To the extent set forth at the hearing and subsequently agreed upon by the parties, the November Motion to Compel is
5. The September Motion to Compel (Doc. #159, unredacted as Doc. #171) and the November Motion to Compel (Doc. #180, unredacted as Doc. #S-4 under seal) are otherwise