United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
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.
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,
• 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
• Test Reports from 400 devices tested by Verizon's
• 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
• Communications with manufacturers on all test cases
• Diagrams and design considerations in Verizon's
• 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.
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. ...