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Discovery Letter Duraflame, Inc v. Hearthmark

September 17, 2012

DISCOVERY LETTER DURAFLAME, INC., PLAINTIFF,
v.
HEARTHMARK, LLC,
DEFENDANT.



The opinion of the court was delivered by: United States Magistrate Judge Kandis A. Westmore

ORDER RE 8/9/2012

United States District Court Northern District of California

I.INTRODUCTION

On August 2, 2012, this matter was referred to U.S. Magistrate Judge Kandis A. Westmore for discovery purposes. The parties submitted a joint letter on August 9, 2012, in which Defendant Hearthmark seeks to compel Plaintiff Duraflame's further amended infringement contentions. Dkt. No. 51. After reviewing the joint letter and the infringement contentions, the court denies Defendant's request because Plaintiff has complied with Patent Local Rule 3-1 to the extent possible, and further supplementation at this time, prior to obtaining additional, nonpublic information through discovery, would be futile.

II.FACTUAL BACKGROUND

Both parties are in the business of producing artificial firelogs. Duraflame claims that Hearthmark is infringing on U.S. Patent Nos. 8,007,550 ("'550 Patent") and 8,123,824 ("'824 Patent"), both of which concern the chemical formulation of artificial firelogs. Dkt. No. 1. Duraflame served its Preliminary Infringement Contentions on June 21, 2012. Dkt. No. 51, Exh.

1. The parties conducted a meet and confer, and Duraflame served its First Amended Infringement Contentions on July 26, 2012. Dkt. No. 51. Defendant Hearthmark proposed a further meet and confer because it was unsatisfied with the Amended Contentions, but Duraflame declined. Dkt. No. 51.

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As a result, Defendant Hearthmark filed its motion to compel further responses along with a motion to shorten time. Dkt. Nos. 41, 43.

III.FORM AND CONTENT OF JOINT LETTER

The court's General Standing Order*fn1 outlines the meet and confer process in which the parties must engage prior to seeking court intervention by way of filing a joint letter outlining the discovery dispute. See General Standing Order at ¶¶11-18. Paragraph 11 requires that all parties shall meet and confer in person or telephonically, if an in person conference is not feasible, regarding the discovery disputes(s) in an effort to resolve these matter(s).... If unable to resolve all disputes through this procedure, the parties shall draft and file a jointly signed letter within five (5) business days of the lead trial counsels' meet and confer session....

The parties electronically-field their joint letter on August 9, 2012, the same day the court ordered them to meet and confer. Dkt. No. 51. Despite the requirement to substantively meet and confer prior to filing the joint letter, the parties' cover letter attests that the last meet and confer attempt was made on July 27, 2012, six days before the discovery dispute was referred to the undersigned.

See Dkt. No 51 at 1.

In addition to failing to substantively meet and confer consistent with the court's standing order, the parties failed to comply with the format outlined in the subsections ...


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