3Com Corp. v. D-Link Systems, Inc., Case No. 03-cv-02177 (N.D. Cal. Mar. 27, 2007)
In this patent infringement action, Plaintiff 3Com Corporation ("3Com") moved to compel production of documents and sanctions against Defendant-Intervenor Realtek Semiconductor Corporation ("Realtek").
Of particular interest is the discovery dispute over the source code of the Realteck products that allegedly infringed 3Com's patents. Realtek produced the current and several other versions of the source code and stated that "it has now produced all the versions it maintains." 3Com argued that it has "good reason to believe" otherwise. In fact, Realtek did not dispute 3Com's claim that although many versions of generation 3.xx were produced, versions of generations 4.xx, 5.xx, and 6.xx were not. Realtek simply stated "[t]here can be many explanations for skipping a number when mulitple versions of the code are created," and did not expound on those "explanations."
Although the court agreed that 3Com was entitled to the other versions of the source code, the court did not find that sanctions were "unwarranted" at that time.
The court cannot conclude that Realtek has acted willfully or in bad faith. Realtek may very well have erroneously believed that it had acted properly. In addition, there is no doubt that Realtek has expended significant effort in complying with its discovery obligation, which perhaps explains its refusal to do more at this point. Accordingly, the court finds that the sanctions sought by 3Com are unwarranted at this juncture.
However, the court ordered Realtek to produce all missing versions of the source code, and if it cannot, it must declare as such under penalty of perjury.
[T]he court ORDERS Realtek to produce all missing versions of the source code that it maintains. If Realtek cannot produce additional versions, the court ORDERS Realtek to declare so by way of a statement under penalty of perjury of both a Realtek officer, director or managing agent and its counsel at bar. This admission must identify the versions of the source code that may have once existed and must explain their disappearance. [Boldface added.]
