The opinion of the court was delivered by: Lucy H. Koh United States District Judge
United States District Court For the Northern District of California
ORDER IMPOSING SANCTIONS ON DEFENDANT A10
Plaintiffs Brocade Communications Systems, Inc. and Foundry Networks, LLC (together, Brocade) filed a motion for contempt and sanctions as a result of A10's failure to timely produce 22 the source code; and a motion to compel A10 to properly file portions of its Opposition to 23 Plaintiffs' Motion for a Temporary Restraining Order, which contained confidential source code 24 routine names, under seal. See ECF Nos. 138 and 157. At the August 12 hearing on these and 25 other motions, the Court issued an order to show cause as to why A10 should not be sanctioned for 26 (1) failing to timely produce source code in violation of the Court's Orders to do so; and (2) 27 publicly filing Brocade's designated confidential information in violation of the Protective Order 28 and the Civil Local Rules. Order, August 12, 2011, ECF No. 173. The show cause hearing was held on August 30, 2011. For the reasons set forth below, the Court imposes sanctions on A10 for 2 $26,680 in attorneys' fees.
5 party that "fails to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A).
The Court may also impose sanctions pursuant to Fed. R. Civ. P. 37(b) on a party that fails to 7 comply with a protective order. See Fed. R. Civ. P. 37(b)(2)(A); Westinghouse Elec. Corp. v. 37(b)(2) should provide for enforcement of Rule 26(c) joint protective orders); United States v.
(explaining that "[t]he scope of Rule 37(b)(2) is broadened by extending it to include any order 'to 13 provide or permit discovery,'" and that Rule 37(b)(2) "should provide comprehensively for 14 enforcement of all these orders," including protective orders under Fed. R. Civ. P. 26(c)).
I.A10's Violations of Court Orders
Federal Rule of Civil Procedure 37(b) authorizes a district court to impose sanctions on a Newman & Holtzinger, P.C., 992 F.2d 932, 934-35 (citing support for the proposition that Rule 9 Nat'l Med. Enters., Inc., 792 F.2d 906, 910 (9th Cir. 1986) (upholding a Rule 37(b) sanction for a 11 party's violation of the protective order); Fed. ry Comm. Notes (1970)
A. Violation of Orders to Produce Source Code
The Court has issued two discovery orders requiring A10 to produce its source code and A10 has violated both of them. The first case management order stated that "[a]ll other discovery 18 shall commence now, including discovery of source code relevant to the copyright and patent 19 infringement claims." Case Management Order ("CMO"), March 24, 2011, ECF No. 72. Though 20 the Court ordered A10 to begin production of the source code relevant to Brocade's claims on 21 March 24, 2011, as of the April 28 case management conference ("CMC") A10 had produced none 22 of its code. CMC Hr'g Tr. 72, April 28, 2011, ECF No. 86. 23
24 after the CMO was not unreasonable in light of the ambiguity. A10 argues that it interpreted the CMO as resolving a different discovery issue that was raised at the case management conference, 26 and that it did not interpret the CMO as an order to immediately produce its source code. A10's 27 argument, however, is contradicted by its position during the April 28, 2011 CMC. At the April 28
A10 argues that the CMO was ambiguous, and that its failure to produce its source code 28, 2011 CMC, the Court expressed concern that A10 had violated its March 24 Order by failing to 2 produce any code.
Well, I have to say, I'm really not happy that you've basically violated my March 24th Order in not producing any code. . . . After I ordered that it be produced, I'm not happy with that.
CMC Hr'g Tr. 72:3-5; 72:13-14, April 28, 2011, ECF No. 86. A10 did not object at that time that 6 it had misunderstood the Court's March 24 Order. Instead, A10 acknowledged the Order and 7 stated "understood your honor, and I apologize." CMC Hr'g Tr. 72:15-16, April 28, 2011, ECF 8 No. 86. 9
Finally, in support of its position, A10 argues that as of March 24, when the CMO was issued, it had not yet served its written objections to the requests for production of its source code.
To the extent, however, that A10 has objected to the production of its source code, the Court 12 overruled those objections, as explained more fully below. 13 14 with respect to its source code production were made explicitly clear to A10 at the April 28 CMC.
When the issue of A10's source code production arose, the Court explained what A10 was required 16 to produce, and put A10 on notice of the consequences of future noncompliance with the Court's 17 order: produce all your source code because I've overruled the burdensome objection. You have one line of products.
Your company's only been in existence since 2005. I previously, on March 24th, ordered that source code be produced. If there's a second noncompliance with a second order, the sanctions will be in order.
Transcript from Case Management Conference at 75:2-10, ECF No. 86 (emphasis added). 23
24 produce all A10's source code, A10 had produced some of its source code, but nonetheless failed 25 to produce source code from before 2007. Instead, A10 unilaterally determined that it would only 26 produce "active versions" of the source code since March 8, 2007. A10 argues now that the 27 productions that it ...