I am pleased to announce that, starting with Andrew's next post, we will be pivoting to a new format. No longer will we be analyzing the developments in IP law with mere written words. Instead, we will be creating Schoolhouse Rock style musical videos. Andrew's surprisingly moving singing voice will be accompanied by my own interpretive dance—leading you through the intricacies of the days' cases like a bee describing the way to honey.
The subject of today's post, CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-CFC-CJB, D.I. 413 (D. Del. Feb. 7, 2025) will also be the subject of our first song, "Sanction Sanctuary."
The title comes from the plaintiff's motion for sanctions -- unusual in the district outside of the Pennypack context. The issue there was that the defendant had produced almost all of its documents after the substantial completion deadline, resulting in extra work for the plaintiff, who sought fees as compensation. The defendant argued that the late production was not sanctionable because it was caused in large part by an error in their document collection that had initially missed all documents before 2018.
Judge Burke denied the motion, despite finding that plaintiffs had been harmed by the late productions. In doing so, he laid out the specific and narrow situations in which Sanctions are typically warranted:
the Court here will exercise its broad discretion in such matters by DENYING the Motion. It does so because it concludes, under the particular circumstances at play, that it would not be just to do otherwise . . . When this Court orders payment of fees and costs pursuant to Rule 37, it tends to be in situations where the magnitude of the offending party's conduct is repeated, clear and/or outsized, . . .or where the Court specifically engages with a party on a particular issue, and that party makes consistent, repeated representations about compliance to the Court that are not accurate or that they do not deliver on, or where a party's failure to produce discovery or follow a court order has significant, case-altering consequences for its opponent and/or the Court.
Id. (internal citations omitted).
I expect to see the highlighted portion above cited above in about every sanctions motion. Assuming, of course, that the parties do not simply cite directly to the song.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
