Konami
Digital Entertainment Co., Ltd. v. Harmonix Music Sys., Inc.,
No. 6:08cv286, 2009 WL 3448148, *2-*3 (E.D. Tex. Oct. 22, 2009)
Judge: John Love
Holding: Motion to Compel DENIED
Thanks to Robert Matthews with Matthews Patent Law Consulting for alerting me to this recent opinion by Judge Love which came out while I was on vacation, but which deserves immediate mention since it applies the still relatively new "meet and confer" local rule.
Judge Love's opinion denied an accused infringer’s motion to compel a patentee to produce discovery on technologically-related patent prosecution files, to support athe ccused infringers’ inequitable conduct defense, because the accused infringers failed to procedurally comply with the court’s local rules requiring the lead counsel for each side have a meet and confer before filing any motion to compel.
Judge Love noted that the “lead counsel” identified on the certificate was not the same lead counsel identified on the court’s docket. “At this time, the Court will not address the substantive merits of the Motion because the moving party has failed to satisfy the requirements of the Local Rules. Pursuant to Local Rule CV-7(h), prior to seeking court intervention, lead counsel for the movant must have a personal conference with the lead counsel for the non-movant. Local Rule CV-7(h). The ‘meet and confer’ rule further explains: ‘In the personal conference, the participants must give each other the opportunity to express his or her views concerning the disputes. The participants must also compare views and have a discussion in an attempt to resolve their differing views before coming to court. Such discussion requires a sincere effort in which the participants present the merits of their respective positions and meaningfully assess the relatively strengths of each position.’ L.R. CV-7(h). The parties apparently agree that a telephone conference occurred prior to the filing of this Motion but disagree as to whether the requirements of Rule CV-7(h) and (i) were met, and if not, who was responsible." In discovery-related motions, the Certificate of Conference must be signed by lead counsel, Judge Love notes, citing L.R. CV-7(I), and going on to write that "[t]he Court sees no reason that the ‘lead counsel’ signing a Certificate of Conference should not be the same attorney that is designated as lead counsel on the Court’s docket sheet. " Accordingly, Judge Love denied the motion for failure to comply with the rule and instructed the parties to meet and confer and refile if necessary.
The opinion provides some useful (and additional for readers that were not at the recent bench/bar conference at which this topic came up quite a bit) guidance as to the application of the "meet and confer" rule.
