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Pacing Technologies, LLC v. Garmin International, Inc.

United States District Court, Ninth Circuit

June 28, 2013

PACING TECHNOLOGIES, LLC, Plaintiff,
v.
GARMIN INTERNATIONAL, INC. AND GARMIN, USA, INC., Defendants.

ORDER: (1) GRANTING IN PART, DENYING IN PART PLAINTIFF'S MOTION TO COMPEL; AND (2) GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR PROTECTIVE ORDER [ECF Nos. 62, 69 and 81.]

WILLIAM McCURINE, Jr., District Judge.

I. INTRODUCTION

On February 4, 2013, the Court held a telephonic discovery conference in the above-entitled matter. [ECF No. 53.] At the teleconference, the Court heard from counsel of record regarding the discovery impasse reached by the parties concerning Plaintiff's request for the Defendants' customer contact information in order to conduct a survey on the purchase and use of Defendants' products and web services.

The Court granted Plaintiff's request for briefing on the issue of whether Defendants' customer contact information is discoverable or privileged in this patent infringement action where claims of direct and induced infringement are at issue. Plaintiff's motion to compel production was filed on February 15, 2013. [ECF No. 62.] Defendants' opposition brief was filed on February 27, 2013 [ECF No. 69] and Plaintiff's filed a reply brief on March 8, 2013. [ECF No. 81.] The parties requested an extension of the hearing date in this matter, which was granted. [ECF No. 87.] On June 27, 2013, the Court held oral argument. Brian Higgins, Esq., appeared for Plaintiff. Nicholas Groombridge, Esq., appeared for Defendant. The hearing was placed on the record and the Court issued an oral ruling which is HEREBY incorporated in this Order its entirety. After hearing from the attorneys of record and with careful consideration of the parties' briefs, declarations and exhibits in support, the Court GRANTS IN PART, DENIES IN PART Plaintiff's motion to compel and GRANTS IN PART, DENIES IN PART Defendants' motion for protective order.

II. ARGUMENTS

A. Plaintiff's Argument

1. Background - PaceDJ

PaceDJ is an application for smartphone platforms which allows users to find music with a tempo that matches the pace of a users' workout. Plaintiff alleges Defendants infringed its patent by providing its customers with the Garmin Connect website where they can enter workout information including cadence type information and thereafter download workout or cadence data to various Garmin devices for pacing or other purposes.

2. Motion to Compel

Plaintiff argues it is entitled under Rule 26(b) of the Federal Rules of Civil Procedure to discover the user names and email addresses of Defendants' customers so that it may collect facts in support of its infringement claims. Specifically, Plaintiff argues Defendants' customers know which accused products they purchased and in what manner they used Defendants' web-based services (Garmin Connect). Consequently, Plaintiff argues such information, which is not tracked by Defendants and available only through interaction with the customers themselves, is relevant to Plaintiff's need to show Defendants' customers infringed Plaintiff's patent under 35 ยง U.S.C. 271(b). [ECF No. 62.]

Plaintiff contends its request for contact information is narrowly tailored to reduce intrusion as it seeks only the names and email addresses of Garmin Connect users located in the United States. [ECF No. 81.] Furthermore, Plaintiff underscores the fact that it seeks customer contact information only in order to email one survey, which will be denoted optional, to customers who use or have purchased Defendants' accused products. Plaintiff argues these customers know the relevant facts of their own direct infringement as well as facts bearing on induced infringement that are available nowhere else.

As an alternative to the method whereby Plaintiff receives the user names and email addresses and uses its own resources to send the proposed survey to Defendants' customers, Plaintiff offers to allow Defendants to disseminate its optional survey on its behalf, thereby eliminating Defendants' concerns about invasion of privacy and loss of goodwill. [ECF No. 81.] Plaintiff does not, however, wish to allow Defendants to view the questions in the email survey before it is sent to customers.

B. Defendants' Argument

1. Background: The Garmin ...


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