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Mobility Workx, LLC v. Cellco Partnership

United States District Court, E.D. Texas, Sherman Division

November 18, 2019

MOBILITY WORKX, LLC, Plaintiff,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Mobility Workx, LLC's Motion Requesting an Adverse Inference Jury Instruction be Given Pursuant to FRCP 37(C) (Dkt. #168). Having considered the motion and the relevant pleadings, the Court finds that Mobility Workx' Motion is DENIED.

         BACKGROUND

         Mobility Workx, due to what it claims is intentional bad-faith conduct on Verizon's part, requests that an adverse inference instruction be given to the jury. Mobility Workx argues that “Verizon strategically decided to withhold discoverable information called for by the local rules and this Court's Orders, [and] also refused to produce relevant documents even after receiving a discovery letter from Mobility specifically requesting Verizon to produce relevant documents” (Dkt. #168). Specifically, Mobility Workx contends that Verizon “intentionally has refused to provide any specific or proprietary documents other than generic documents pertaining to the LTE 4G systems in general and no internal documents whatsoever as to how their Emulator works in the NDET lab” (Dkt. #168) (citing Mahcat Decl at ¶¶ 2-31). This has resulted, Mobility Workx continues, in Mobility Workx being forced to resort to publicly available documents to attempt to prove infringement (Dkt. #168). In support of its claims, Mobility Workx provides the Court with a list of documents that it contends “should have been produced voluntarily but were not” (Dkt. #168). The list of documents that were allegedly not produced includes:

• eNodeB configuration, test plans, KPI graphs charts on Handover, performance on handover (Handover Completion), etc.
• IP Addresses mappings of Verizon's network
• Diagrams and standards of X2 Handover interfaces and sample interface configurations
• Ericsson's documentation
• Any other vendor's documentation (e.g. Cisco, etc.)
• EPC or any other vendor documentation on ANR or Self-Organizing Networks (SON) where neighbor cells are discovered and handover parameters are optimized.
• All communications with Unified Patents
• Any deviation or customization made outside 3GPP Technical Specification documents.
• All drive test cases from different parts of the country
• Test Reports from 400 devices tested by Verizon's NDET
• Lab test plans or instructions are provided to the lab technicians (or other individuals) at the NDET lab that perform the certification tests and direct them how to perform the tests required for certification under Verizon's standards
• Communications with manufacturers on all test cases
• Diagrams and design considerations in Verizon's NDET
• Test Reports from all test cases shown in the Open Development Network's Test Suites.

(Dkt. #168) (citing Machat Decl. at ¶ 27). Mobility Workx further points to Verizon's alleged decision to not produce any “documents showing how their 4G network operates” (Dkt. #168) (citing Machat Decl. at ¶¶ 10, 28) or any documents “showing exactly how testing is done in the lab []” (Dkt. #168) (citing Machat Decl. at ¶¶ 32-33). Mobility Workx argues that all of Verizon's alleged decisions to withhold documents were made in bad faith. In support of this bad-faith argument, Mobility Workx proffers three reasons that it claims should compel the Court to find bad faith. First Mobility Workx claims that because Verizon and its counsel frequently appear in the District, they could not have been mistaken on the rules of the Court and thus must have acted intentionally (Dkt. #168). Next, Mobility Workx argues that because Verizon purportedly did not produce “documents showing how their network operates, ” the Court should find that Verizon acted in bad faith (Dkt. #168). Finally, Mobility Workx argues that because Verizon allegedly did not respond to a letter requesting the information at issue nor respond to interrogatories, the Court should find that Verizon acted in bad faith (Dkt. #168). Verizon opposes Mobility Workx' Motion (Dkt. #170).

         In response, Verizon claims that it “not only produced these [disputed] documents, but repeatedly pointed them out to counsel for Mobility in correspondence, interrogatory responses, and on telephonic meet-and-confer conferences” (Dkt. #170). First, Verizon claims that “between July 24, 2018 and September 21, 2018 [Verizon] produced over 17, 000 pages of technical materials” (Dkt. #170) (citing Barton Decl. ...


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