U.S. District Judge Albright in the Western District of Texas recently demonstrated that he is not afraid to make big decisions. Judge Albright issued the “death-penalty sanction” of default judgment against a patent litigation defendant who committed extensive discovery misconduct.
The case involved an apparatus for treating frac run-off water at oil drilling sites. The patent element in dispute was whether the accused device was computer automated. As summarized in the ruling, the defendant went to great lengths to conceal that the accused device was automated, including failing to produce documents, lying at deposition, lying in discovery responses, and even disassembling a production model of the accused device to remove necessary parts before an inspection by experts. The Court also emphasized the numerous times at which the defendant could have come clean and cured the misconduct. The record for the misconduct was supported by the multiple times the plaintiffs had successfully sought court intervention in discovery disputes.
The plaintiff only identified the concealment after a much delayed document dump and third party discovery during final pre-trial preparation. The Court struck the defendant’s defenses and counterclaims, ruled the patent infringed, permanently enjoined the defendant, and awarded attorneys’ fees. The case will proceed to trial for determination of damages. The case is Performance Chemical Co. v. True Chemical Solutions, LLC, Case No. 21-cv-222, Order Dated May 20, 2021.
This ruling may further help fuel the rush of patent plaintiffs to the Western District of Texas, a district quickly gaining in popularity for its plaintiff-friendly discovery rules.
Robyn Ast-Gmoser is a partner in Thompson Coburn’s Intellectual Property practice and an experienced patent litigator who represents clients in patent and trademark matters in federal courts.