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More often than not, when the Court has a hearing on discovery disputes, both sides bring competing issues. No one likes to be totally on defense for an entire hearing, and even bringing a marginal dispute allows you to undermine the opposing party by pointing out their own wrongdoing. And of course, there's always the chance that you'll win.

Judge Burke showed the limits of this calculus earlier this week—it only works if you convince the Court you've got a real dispute. And It's very hard to do that if you admit that you wouldn't have filed your motion if the other side hadn't moved first.

That's what plaintiff did in in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC-CJB, D.I. 510 (D. Del. Oct. 26, 2020), though admittedly they didn't have much choice given the course of events laid out in the Judge Burke's order:

  • Personal Audio, had asked defendant, Google, to specifically list the source code it was relying on for its non-infringement contentions, and Google refused.
  • Google later served its non-infringement expert report, which cited the source code it had refused to include in its earlier discovery responses, and Personal Audio did not object and simply served its responsive reply report on schedule.
  • It was only when Google moved to strike portions of the reply report that Personal Audio "for the first time, raised an issue with [the non-infringement expert]'s report."

This history, combined with the bald fact that "it is undisputed that Plaintiff would not have filed the instant motion had Google not filed its own motion to strike" led Judge Burke to summarily deny Personal Audio's motion shortly in all respects shortly after the hearing. Google's motion remains pending.

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