Vringo Inc. (VRNG), the patent licensing company locked in a multi-jurisdictional infringement war with ZTE Corp., is seeking to extend the deadline for discovery from Google Inc., Edelman and Grayling, who were subpoenaed in the breach of contract case against ZTE in connection with an alleged scheme to manipulate Vringo’s stock to weaken its ability to seek licensing fees.
New York-based Vringo today asked Judge Lewis Kaplan of the U.S. District Court in Manhattan to extend the deadline for limited third party disclosure based on the subpoenas until Sept. 24 and Oct. 2.
“Vringo has served Rule 45 subpoenas on third parties to obtain documents and 30(b)(6) testimony relevant to both issues. While some third parties have produced responsive information, there are three others who will not be able to comply fully with the subpoenas before the close of fact discovery: Edelman, Graying, and Google,” said Karl Geercken, a partner with Alston & Bird in New York in the motion on behalf of Vringo.
Google, Edelman and Grayling have all agreed to produce documents in response to their respective subpoenas, though such productions are not expected to be complete by the close of fact discovery, the motion said.
“While Vringo is hopeful that the respective document productions will provide the necessary information, it recognizes that those document productions may require additional follow-up, including taking 30(b)(6) depositions on topics noticed in the subpoenas or judicial enforcement of the subpoenas. Accordingly, Vringo moves the Court for an order extending the discovery period for those third parties to produce documents until September 24 and for the completion of any necessary follow-up, including 30(b)(6) depositions or motions for judicial enforcement, by October 2.”
Geercken said Vringo has asked for ZTE’s position on the motion, "but they have not provided it."
Jeff Butler, a partner with Clifford Chance US in New York, who represents ZTE, couldn't be reached for comment.
Geercken didn’t return a telephone call seeking a comment on what Vringo hopes to find out from the subpoenas and third party discovery.
Officials from Vringo declined comment.
Officials from Google, Edelman and Grayling couldn’t be reached immediately for comment.
Judge Kaplan has already found that ZTE twice intentionally breached a non-disclosure agreement between the two companies by using Vringo’s confidential material as the basis for filing a civil complaint in China, and by using the protected material as the basis for inducing a regulatory investigation against Vringo.
The judge also has said during hearing in July 2014 that Vringo was likely entitled to significant damages from ZTE.
Judge Kaplan last month said he would consider Vringo’s motion for sanctions based on ZTE’s unreasonable discovery delay tactics, which eventually led to its decision to defy an order by the court for ZTE Chief Counsel Guo Xioaming to be deposed by Vringo attorneys in New York. After significant delay, ZTE’s attorneys eventually revealed Guo wouldn’t appear because he feared arrest in connection with a federal probe into violations of Iran sanctions.
Vringo has said it is preparing a motion for case-dispositive sanctions and has requested additional time to do so.
The judge rejected ZTE’s plea for mercy for Mr. Guo, saying it was unwarranted based on the facts of the probe and ZTE’s recalcitrance.
“ZTE obviously instructed its lead U.S. counsel in this litigation (King & Spalding) to seek to avoid Mr. Guo being deposed at all—or, if that could not be prevented, to ensure that any deposition of him take place outside this country,” Judge Kaplan said in a previous order. “Yet it litigated two motions to compel in this Court on those very issues without ever once informing the Court of the criminal investigation or of its concerns with respect to Mr. Guo coming to this country. It thus put both the Court and its adversary to considerable burden for reasons that never were disclosed.
Vringo’s amended complaint alleges ZTE brought the antitrust complaint against Vringo in Shenzhen court in an attempt to force Vringo to accept non-FRAND licensing rates that would be far lower than any rates than any other court or arbitral tribunal would allow.
Vringo also accused ZTE of orchestrating a scheme with the help of Chinese regulators to manipulate Vringo’s stock price to put pressure on it to reduce its demands for damages.
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