In the case In re Lufthansa Technick AG, No. C17-1453-JCC (W.D. Wash. Feb. 17, 2023), Washington District Judge John C. Coughenor granted Lufthansa’s motion to compel regarding all search term results for meeting protocol documentation and supplementing the master list of parts (“MPL”) produced by Astronics Advanced Electronic Systems (“AES”), but did not grant Lufthansa’s motion for sanctions.

Case Discussion

In this Section 1782 filing related to patent litigation in the UK and Germany over allegations that AES infringed Lufthansa’s European patent for its “Electrical Power Supply Device” by marketing and selling its own system in Europe, the parties had a dispute over (1) whether AES must provide Lufthansa with all of the meeting protocol documentation in its possession responsive to all search term results from the parties’ agreed-upon search terms, or just the protocol documentation AES deems relevant to Lufthansa’s U.K. and German patent infringement proceedings, and (2) whether AES must supplement the MPL previously produced to Lufthansa with parts capable of use only in DC versions of AES’s EmPower in-seat power system(s).

Lufthansa indicated that this seemingly broad discovery was needed, in large part, because AES productions to date had been demonstrably incomplete.

Judge’s Ruling

Judge Coughenor observed that “given that the purpose of discovery here is to support Lufthansa’s efforts to prove-up damages in the U.K. and German proceedings, it is in AES’s interest to share less—not more—information with Lufthansa.” He also mentioned in a footnote: “This is borne out by AES’s seemingly unnecessarily narrow interpretation of the subpoena in this matter…and the Court’s prior order regarding production of the MPL…, along with AES’s dealings with the Court on a prior Lufthansa discovery petition.”

Ruling on the motion to compel, Judge Coughenor stated: “Based on the Court’s review of the parties’ voluminous submissions on these issues, including briefing on the instant motions, supplemental briefing on the issue of the MPL, supporting declarations, and exhibits, the Court concludes that AES must produce the discovery Lufthansa currently seeks. To the extent doing so, at least with respect to the MPL, is burdensome, this is a product of AES’s own doing. It readily admits that its Chief Engineer spent 200 hours compiling a series of incomplete versions of the MPL—none of which would be useful in compiling the comprehensive version of the MPL the Court thought it previously directed AES to produce…Moreover, near as the Court can glean, the burden to AES of producing a complete version of the meeting protocol documentation is low. AES admits it already possesses this information…For these reasons, the Court GRANTS Lufthansa’s motion to compel.”

Ruling on the motion for sanctions, Judge Coughenor stated: “Lufthansa also asks the Court to find AES in contempt and impose sanctions…But as AES points out,…for a contempt finding, Lufthansa must show, through clear and convincing evidence, that AES violated the Court’s specific and definite order…Lufthansa cannot meet this standard. As the supplemental briefing suggests, the Court’s prior order regarding production of the MPL may not have been sufficiently clear to rise to the level warranting contempt here. For this reason, the Court DENIES Lufthansa’s request. However, given the guidance now contained within this Order, the Court does not expect that AES could put forth a similar argument in defense of a future motion for contempt from Lufthansa, at least as it relates to the particular discovery addressed in this Order.”

So, what do you think? Should parties have to produce all search term results for a category of documents without an opportunity to review for responsiveness? Please share any comments you might have or if you’d like to know more about a particular topic.

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