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Court Orders Google to Cooperate in Apple Discovery

Thursday, May 16, 2013

Google Inc.'s status as a third party in Apple Inc.'s patent infringement lawsuit against Samsung Electronics Co. did not exempt it from the obligation to provide Apple with the search terms it used, and the custodians it checked with, to enable Apple to evaluate the sufficiency of Google's response to a subpoena, the U.S. District Court for the Northern District of California ruled May 9 (Apple Inc. v. Samsung Electronics Co., N.D. Cal., No. 5:12-cv-00630-LHK, 5/9/13).

Google's third party status did not give it the option of declining to comply, Magistrate Judge Paul S. Grewal said, and once it was served with a subpoena, Google had a duty to participate in a transparent and collaborative discovery process.

Apple Inc. originally sued Samsung in 2011, alleging infringement of Apple's patents in certain smartphones and tablets. A jury awarded Apple more than $1 billion, an amount that Judge Lucy Koh later reduced.Apple Inc. v. Samsung Electronics Co., No. 5:11-cv-01846-LHK (N.D. Cal. Mar. 1, 2013) (43 PTD, 3/5/13).

The instant proceeding, in which Apple alleged that Samsung had continued to infringe the same and additional patents, is at the discovery stage. Apple moved for an order to compel Google to provide details of how it responded to a subpoena under Fed. R. Civ. P. 45 so that Apple could evaluate its responsiveness.

Google argued that the request was unduly burdensome, and that non-parties did not need to be transparent in their discovery methodology.

The court disagreed. It said Google presented no evidence that pulling together the search terms it used and the custodians it queried over the past six months would be burdensome.

In addtion, the court said, citing DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010), that while Google need not subsidize Apple's litigation, it did have to participate in discovery properly once it was subpoenaed. It agreed with DeGeer that the principles of discovery, whether electronic or conventional, are cooperation, collaboration, and transparency.

The court gave Google 48 hours to produce the materials, and gave Apple and Google 48 hours after that to attempt to resolve any remaining issues between them.

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