Thursday, 3 October 2013

HTC Corp v Nokia Corp [2013] EWHC B16 (Ch) (12 September 2013)

HTC Corp v Nokia Corp [2013] EWHC B16 (Ch) (12 September 2013)  is a skirmish in the mobile phone wars that seem to have been raging since time immemorial, but are actually of more recent origin. HTC challenged two Nokia patents, and Nokia counterclaimed for infringement. No different from any number of similar dust-ups over the past few years. The judgment here, however, was concerned with steps taken to secure evidence from two companies in the USA who were not party to the litigation, Qualcomm and Broadcom (some inspired brand creation has been going on here). Only the Qualcomm evidence caused any problems.

Nokia made a third party disclosure application to the District Court for the Southern District of California, and that court made a protective order to ensure that the information disclosed went no further than the parties' legal advisers. Fair enough: the information was described as 'the crown jewels', though it is not clear by whom. (My guess is that it was an American.) Recipients would have to sign a prescribed form, and there lay the problem. HTC's counsel, while having no reservations about the obligations themselves, were not willing to submit to the jurisdiction of the District Court or to rick becoming personally liable for a breach. As their instructing solicitors had already signed up, they (the solicitors) were unable to show the evidence to counsel, which was, as the judge (Norris J) put it, an untenable position. What were they going to do? Bring in additional counsel, for that part of the claim?

The case was all about HTC's application for an order against Nokia for disclosure and inspection of the documents, which of course pursuant to the California order had been disclosed to Nokia with a view to them sharing them with HTC. Except that the documents were actually in the hands of Nokia's lawyers. But the Civil Procedure Rules (rule 31.8, to be precise) talk about 'control', and if something is in the hands of your agent it is in your control, isn't it?

Of course the problem could be solved by going back to the District Court and asking for the protective order to be made just a little less protective - though whether Qualcomm would be prepared to go along with that might be another matter. And that's exactly what HTC are engaged in doing, or were at the time of the application: so Norris J refused the order applied for, saying he didn't believe that Nokia had control of the documents for the purposes of CPR 38.1. He wasn't prepared to adjourn, because the date for trial was rapidly approaching: better that the time available be spent in appealing against his refusal, or going to court in California.

All in all, a fun little sideshow to the war.

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