A federal court in Texas has imposed severe sanctions in a patent infringement lawsuit, due to repeated violations of its discovery orders and the creation of a fraudulent discovery-related document; a default judgment has been entered against the violator, and information about the document has been forwarded to alert the district’s chief judge “of the need to potentially take disciplinary measures” against counsel. FURminator, Inc. v. PetVac Group, LLC, No. 08-338 (U.S. Dist. Ct., E.D. Tex., Marshall Div., decided August 5, 2011). The court has scheduled a hearing for August 23 to address the amount of fees and expenses to be awarded “relating to [the plaintiff’s] effort of provingup the fraudulent email.”
FURminator, which specializes in pet grooming tools and shedding solutions, sued PetVac in 2008, alleging patent infringement. PetVac delayed answering the complaint and sought additional time “in order to complete a Re-Examination of the Plaintiff’s patent by the USPTO.” According to the plaintiff, no such re-examination was then pending. PetVac filed an answer and counterclaims only after FURminator filed a motion for a default judgment. Because PetVac was finally represented by counsel and had filed an answer, the court denied FURminator’s motion and later denied FURminator’s motion to strike the answer and counterclaims. The court then entered a discovery order following a status conference at which PetVac’s counsel failed to appear. FURminator subsequently filed a motion to strike the pleadings, because PetVac failed to comply with the discovery order. PetVac was given more time to comply with the discovery order and again failed to do so, leading FURminator to file another motion to strike the pleadings. PetVac responded by attaching an e-mail indicating that it had contacted FURminator on June 15, 2010, regarding PetVac’s production of documents.
FURminator submitted evidence indicating that its counsel did not receive the e-mail and argued that “facial irregularities . . . might indicate it was fraudulent.” The court asked for additional evidence relating to the e-mail and gave FURminator the opportunity to examine the computer of PetVac’s counsel to determine whether it contained evidence about the June 15 e-mail. PetVac’s counsel then reported that his computer had been stolen. FURminator subpoenaed Google, Inc. to obtain transmission logs for the lawyer’s account; the logs showed that no e-mail had been sent to FURminator’s counsel from defense counsel’s e-mail address on that date.
The court found sufficient evidence that the defendant and its counsel had willfully violated the court’s discovery orders and that the June 15 e-mail was fraudulent, thus granting FURminator’s motion to strike and entering a default judgment against PetVac. In addition to determining what monetary sanctions are appropriate, the court will consider whether a permanent injunction should issue against PetVac during the August 23 hearing.