In this patent infringement action, IBM filed a motion to compel production of certain documents that were withheld as privileged. IBM contend that time was of the essence when it filed its motion.

The district court was not persuaded by the urgency of the request or that time "was of the essence" because the motion was filed late. As explained by the district court, "IBM's urgency is belied by the fact that its request is late. Fact discovery closed November 18. Under Civil Local Rule 37-3, IBM's motion to compel discovery was due within 7 days after the fact discovery deadline. Yet IBM filed its discovery motion on December 13, more than two weeks late."

The district court further explained that "[t]he question presented is whether IBM has shown good cause for its late motion. The Court finds that it has not. IBM could have filed a motion on November 18 asking for an extension of time to compel documents identified on PersonalWeb's privilege log."

The district court also concluded that ordering production of the documents at this late date would interfere with expert discovery. "Incentivizing compliance with the Local Rules would be reason enough to deny IBM's request, but there are additional reasons to enforce a deadline for filing motions to compel. Here, the parties are now in the 'middle of expert discovery' and restarting fact discovery could cause experts to redo their reports and delay the eventual resolution of this case. The consequence of delay is unfair burden to PersonalWeb."

Accordingly, because the district court found that IBM's late filing was not excused by good cause, it denied the motion.

Personal Web Technologies LLC v. International Business Machine Corporation, Case No. 16-cv-01266-EJD (NC) (N.D. Cal. Dec. 16, 2016)