Order 35 - Granting in Part ZTE Motion to Strike

Dear Judge Gildea:

Respondent Barnes & Noble (B&N) has reviewed Order no. 35 and considered the applicability of its guidance to B&N’s pending Motion to Strike (Mot. Dkt. No 853-028).B&N’s motion raises issues different from the motion that led to Order No 35, namely: (1) Complainants attempt to use documents they produced after the close of fact discovery against B&N and (2) Complainants’ affirmative use of documents produced by other Respondents against B&N that were never cited in response to B&N’s discovery requests during fact discovery.B&N informed Complainants yesterday (Ex. A) of its belief that B&N’s Motion to Strike raises different issues from those implicated in Order No. 35, and invited Complainants to meet and confer if they disagreed but have received no response.We therefore believe our motion is appropriately considered in its entirety and is ripe for decision.

B&N also notes that Complainants continue to produce documents, even after close of expert discovery, that B&N suspects Complainants may attempt to use affirmatively in their infringement case against B&N.None of these newly produced documents bear any indication that they were published after the close of fact discovery, nor did Complainants explain or seek leave for their late production.Attached to this letter at Ex. B is a production e-mail from Complainants for four technical documents that were produced just last night.B&N submits that these late documents should suffer the same fate as those identified in B&N’s Motion to Strike, namely, that Complainants should be prohibited from relying upon them in this investigation absent specific leave.