maybe this will help
ZTE Says Vringo's Sanction Bid In IP Row Is Too Harsh
By Matthew Bultman
Law360, New York (September 16, 2015, 2:21 PM EDT) -- ZTE Corp. can’t “frog-march” its top attorney to the airport and force him on a plane to the U.S., the company told a New York federal judge Wednesday, asking to be spared from Vringo Inc.’s "drastic" sanctions request over the attorney's failure to appear in a long-running patent dispute.
Though ZTE conceded that General Counsel Guo Xiaoming’s refusal to appear in court over fears he would be arrested in connection with a separate investigation is sanctionable, it said Vringo’s bid for default judgment is extreme.
It suggested U.S. District Judge Lewis A. Kaplan instead order ZTE to pay Vringo’s fees associated with attempts to depose Guo and preclude ZTE from introducing any of his statements as evidence at trial.
“These lesser sanctions are reasonably tailored to place Vringo in the same position it would occupy if Mr. Guo had appeared for a deposition in New York, and are much more appropriate under the circumstances than the drastic sanctions proposed by Vringo,” it wrote.
Judge Kaplan in mid-August ordered Guo to appear in court, which he has refused to do. The order came shortly after ZTE revealed he feared being arrested in connection with a criminal investigation into the telecommunications technology maker's alleged sale of banned technology to Iran.
Vringo last week asked Judge Kaplan to enter default judgment in its favor, saying Guo’s failure to appear was the latest example of the company’s disregard for court orders. It cited a number of things, including ongoing discovery issues involving Guo emails that haven’t yet been produced.
“Unfortunately, ZTE has repeatedly treated compliance as optional, ignoring and violating the Federal Rules and Court Orders whenever it sees fit, despite repeated warnings from this court,” it wrote.
Although ZTE conceded that it hasn’t complied with court orders regarding Guo’s appearance and with meeting certain discovery deadlines, the company said Tuesday that Vringo wants the court to “throw the book” at it.
It argued a more measured response was appropriate, noting that it had offered for Guo to be deposed in Hong Kong or another location outside the U.S. It also contends Guo’s deposition isn’t material to its adversary’s case.
“Taking all these factors into account, the harshest sanctions would not be appropriate for ZTE’s failure to make Mr. Guo available for a deposition in New York,” it wrote.
ZTE also said it was still working to produce the required documents, which it estimated would likely be ready by mid-October. It blamed the sheer amount of data it needed to collect and review, as well as the fact that many of the documents are in Chinese, as the reason for the delay.
“We respectfully request that the court consider lesser sanctions designed to ensure that Vringo suffers no prejudice from the delay,” it wrote.
The underlying case stems from Vringo suing ZTE in July 2014 in New York’s Southern District for breach of the non-disclosure agreement that came out of settlement talks in 2013 over Vringo’s international patent infringement litigation.
Vringo sought injunctive relief requiring ZTE to withdraw an antitrust complaint it filed against Vringo in Shenzhen, China, in which it said ZTE had disclosed confidential information.
The case has been consolidated with a lawsuit ZTE filed against Vringo in Delaware federal court in February, which claimed Vringo breached its contractual obligation to license essential patents on fair, reasonable and nondiscriminatory, or FRAND, terms.
Vringo is represented by Karl Geercken, Amber Wessels-Yen and Mark McCarty of Alston & Bird LLP.
ZTE is represented by Jeff E. Butler and John P. Alexander of Clifford Chance LLP, Robert F. Perry, Paul A. Straus and David A. Joffe of King & Spalding LLP, Jeffrey J. Catalano of Brinks Gilson & Lione and Charles M. McMahon, Brian A. Jones and Jay H. Reiziss of McDermott Will & Emery LLP.
The consolidated cases are Vringo Inc. v. ZTE Corp., case number 1:14-cv-04988, and ZTE Corp. v. Vringo Inc., case number 1:15-cv-00986, both in the U.S. District Court for the Southern District of New York.
-- Additional reporting by Kurt Orzeck. Editing by Emily Kokoll
