In this patent infringement action, Mobile Telecommunications Tech., LLC ("MTel") filed against Blackberry Corp., MTel moved to exclude certain exhibits that were archived press releases published by RCR Wireless and SkyTel webpage screenshots of advertisements. MTel objected that these exhibits are inadmissible because they have not been authenticated by a representative from the Internet Archive service, or "Wayback Machine." MTel also objected that all of the exhibits constitute hearsay and that none of the exhibits were produced during discovery.

BlackBerry conceded that none of the exhibits were previously produced. It contended that the failure to produce the documents was harmless because they were publicly available. The district court disagreed.

"That a document was publicly available does not excuse a party from its duty to disclose it, and this Court has generally not been receptive to such arguments. MTel points to the Court's Order granting BlackBerry's Motion for Leave to Amend is Preliminary Infringement Contentions [Docket Entry #254], wherein the Court noted that "Blackberry's ability to find [a document] on the Internet ... does not nullify MTel's obligation to respond completely and accurately to Blackberry's discovery requests."

The district court explained that "[u]nder Rule 37(c)(1), if a party fails to provide information as required by Rule 26, the party is not allowed to use that information to supply evidence on a motion, unless the failure was substantially justified or harmless"

The district court concluded that "BlackBerry has not shown that its failure to produce the challenged exhibits was substantially justified."

Accordingly, the district court granted the motion to strike the exhibits that were not disclosed in discovery.

Mobile Telecommunications Tech., LLC v. Blackberry Corp., Case No. 3:12-cv-1652-M (N.D. Tex. May 6, 2016)