Wednesday, July 10, 2013

Survey of Defendant’s Customers Authorized to Investigate Indirect Infringement Claims

The court granted in part plaintiff's motion to send a survey to defendant’s customers concerning potential indirect infringement. However, rather than compel defendant to produce customer names and email addresses, the court ordered defendant to send an optional survey to their customers. "Defendants’ customers have information that is relevant, as well as likely to lead to the discovery of admissible evidence with respect to Plaintiff’s direct and indirect infringement claims because a portion of Defendants’ customers may be direct infringers of [the patent-in-suit]. . . . Defendants have stated they do not keep track of which fitness devices users purchase or which fitness devices customers use to download workouts with cadence data. Consequently, Plaintiff’s only available source for relevant information on how the accused products were used . . . is the customer herself. . . . [T]he Court will allow Defendants to disseminate Plaintiff’s survey via Defendants’ email distribution system. This approach protects the privacy of Defendants’ customer information and reduces the potential for ill will at receiving unwanted email while allowing Plaintiff access to the discovery it needs."

Pacing Technologies, LLC v. Garmin International, Inc., et. al., 3-12-cv-01067 (CASD June 28, 2013, Order) (McCurine, M.J.).

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