MEMORANDUM OF DECISION AND ORDER ON MOTION OF PURE STORAGE INC. FOR PARTIAL SUMMARY JUDGMENT ON AFFIRMATIVE CLAIMS
This matter is before the court on the motion of Pure Storage, Inc. for partial summary judgment on its counterclaims for commercial disparagement, Lanham Act violations, and defamation. (Docket No. 325). By this motion, Pure Storage is seeking a ruling by this court that Lie # 3 in EMC's "Top Ten Lies" document is false and material and that EMC is judicially estopped from taking a contrary position. Pure Storage argues that EMC is barred by the doctrine of judicial estoppel from asserting in the present litigation that its claim that Pure Storage's deduplication is post-processed is true, because EMC allegedly took the opposite position in litigation between the parties in Delaware. EMC denies that it has taken inconsistent positions in the two cases.
This court finds that Pure Storage has failed to establish that the positions taken by EMC are directly inconsistent. Therefore, this court will not apply the doctrine of judicial estoppel and the motion for partial summary judgment is DENIED.
STATEMENT OF FACTS 2
Unless otherwise indicated, the facts relevant to the instant motion are not in dispute, and are as follows:
The Alleged "Lie"
EMC created a document entitled "Pure's Top Ten Lies." The purpose and significance of this document is in dispute, but that issue does not need to be resolved here. At issue in the present motion is Lie #3, which reads in its entirety as follows:
Deduplication is the process of removing redundancies from data. (SF ¶ 7). Data reduction techniques, such as deduplication and compression, are important because they improve performance and cost-effectiveness. (SF ¶ 4). The parties agree that, using techniques such as deduplication and compression "inline" can be advantageous because they reduce the amount of data that needs to be stored in long term memory. (SF ¶ 10).
Pure Storage bases its counterclaims for commercial disparagement, Lanham Act violations and defamation on the Top Ten Lies document, including Lie #3 quoted above, asserting that the statements in the document were false and/or were made without adequate factual basis. By its present motion, Pure Storage is seeking a ruling that EMC cannot claim that the statement "Pure's deduplication is inline" is false.
The Delaware Litigation
The Delaware litigation was not a factor in the instant Massachusetts litigation, and did not become significant to this court until the instant summary judgment pleadings. The facts relating to the Delaware litigation have been provided to this court in a piecemeal fashion. Therefore, this court has only snippets of the evidence on which both parties relied in Delaware. Similarly, the parties have not yet fully defined the issues they intend to present to the jury in the instant case. Discovery was far reaching and covered a number of avenues which will need to be more focused before the case goes to trial. Therefore, the following discussion of the Delaware litigation is, by necessity, very basic and abbreviated.
On November 26, 2013, EMC sued Pure Storage for patent infringement in the United States District Court for the District of Delaware. (SF ¶ 31). EMC moved for summary judgment on one of its patents, arguing that the Pure "FlashArray's inline deduplication feature infringes" U.S. Patent No. 7,434,015 (the "'015 patent"). (SF ¶ 32). The court granted EMC's motion for summary judgment on direct infringement of claims 1, 7 and 16 of the '015 patent. (RF ¶ 35). A jury awarded EMC $14 million. (SF ¶ 59).
Pure Storage argues that Lie #3 must be read to assert that all of "Pure's deduplication is post-processed" and that "Pure lacked inline deduplication[.]" (Pure Storage Mem. (Docket No. 336) at 1). Pure Storage argues further that EMC's position "that Pure's deduplication is not inline, or at least was not inline until late 2015" cannot be reconciled with its position in the Delaware trial. As Pure Storage explains:
For its part, EMC argues that its position has been consistent both in this court and in the Delaware litigation. As EMC explains:
(EMC Opp. (Docket No. 355) at 2-3). EMC then cites to various excerpts from testimony in the Delaware litigation to the effect that Pure Storage's deduplication techniques include some which are inline and some which are post-processed. (
Additional facts will be provided below as appropriate.
"`As a general matter, the doctrine of judicial estoppel prevents a litigant from pressing a claim that is inconsistent with a position taken by that litigant either in a prior legal proceeding or in an earlier phase of the same legal proceeding.'"
While "[t]he contours of the doctrine are hazy, and there is no mechanical test for determining its applicability[,]" the First Circuit has determined that, "at a minimum, two conditions must be satisfied before judicial estoppel can attach. First, the estopping position and the estopped position must be directly inconsistent, that is, mutually exclusive. Second, the responsible party must have succeeded in persuading a court to accept its prior position."
Applying these principles to the instant case compels the conclusion that the doctrine of judicial estoppel does not apply.
The Positions Taken Are Not Apparently Inconsistent
Pure Storage's entire argument is premised on a reading of the "Lie" to mean that none of the deduplication performed by Pure Storage is performed inline. This reading ignores much of the language contained in the paragraph, including the express statement that byte size pattern elimination and lightweight compression are performed inline.
Similarly, it appears from the information provided to this court that the only claim of patent infringement in the Delaware litigation was based on Pure Storage's inline deduplication capabilities. There would have been no need for EMC to have put on evidence concerning those aspects of Pure Storage's products which performed post-processed deduplication. Again, Pure Storage has failed to establish the direct conflict required for this court to apply the doctrine of judicial estoppel.
For all the reasons detailed herein, Pure Storage's Motion for Partial Summary Judgment on Affirmative Claims (Docket No. 325) is DENIED.