KXD’s Conduct Leaves Them SOL

Posted on | April 27, 2008 | No Comments

2008-1316 US Philips v. KXD Technology
CD/CA 2:05-cv-08953

Defendant KXD appeals from judgment on Judge Edward Rafeedie’s Order Striking Defendants’ Answers and Entering Default.  The case involved DVD players and Philips’ patents 5,463,607 and 5,677,903, with the court entering judgment in excess of $91 million and entering a preliminary injunction against defendants’ assets. 

According to the court, defendants’ pattern of violating local and discovery rules–coupled with defendants’ conduct in a related Nevada trademark case–made sanctions appropriate.  This conduct included:

• failing to comply with pretrial deadlines for contentions of law and fact, including witness and exhibit lists;

• not serving an expert report before the deadline although listing on the [belatedly] filed witness list;

• failing to meet with plaintiff’s counsel at least 40 days before the Final Pretrial;

• failing to cooperate with plaintiff in preparing the Final Pretrial Order;

• submitting numerous declarations with hyperbole and unsupported assertions in violation of local rule limiting declarations to "factual, evidentiary" matter;

• misrepresenting the law to the Magistrate Judge during a discovery dispute;

• failing to provide discovery as ordered by the court and, when some materials were provided, it was done with an intent to "deliberately thumb its nose at the Court’s Order and thwart the discovery process."

The court also found that defendants’ conduct in the Nevada case "helped" the court impose these sanctions.  In that case (D/NV 2:05-cv-01532), the court entered an injunction against defendants importing, distributing or selling products  bearing  that plaintiff’s marks.  Defendants apparently violated that injunction and have been sanctioned over $1.5 million.

The Orders were entered in September 2007, and an appeal to the Ninth Circuit taken in January 2008.  The Ninth Circuit transferred the appeal (and pending Motion to Dismiss) to the CAFC in mid-April.

Documents:

2008-1316_KXD_Order.pdf

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