Nimitz Stands by Arguments It Didn’t Disobey Judge’s November Order

U.S. District Chief Judge Colm Connolly for Delaware canceled Tuesday’s scheduled appearance of Nimitz Technologies’ outside counsel, George Pazuniak of O’Kelly & O’Rourke, to show cause why he and the company shouldn’t be sanctioned for their failure to comply with the judge’s Nov. 10 order bank records, emails and other materials. Pazuniak responded Thursday to the April 4 show-cause order by producing, in camera, materials Connolly demanded for his investigation into whether any third-party funding contributed to the filing of Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2304070038). Pazuniak stood by his assertions, in a motion for reargument Monday (docket 1:21-cv-01247), that he wasn’t free to produce the materials for Connolly until the U.S. Appeals Court for the Federal Circuit produced a mandate in connection with its denials of Pazuniak’s petitions for mandamus relief. Connolly’s show-cause order asserted the Federal Circuit’s denial of his petition without an opinion constituted a mandate. Pazuniak regrets “if there is any misunderstanding as to the obligation to comply” with Connolly’s Nov. 10 production order, said his motion for reargument. “However, in view of the facts and law, Nimitz and its counsel were not required to have delivered to the Court the documents which the Court requested, or, at least, reasonably believed that they had no such obligation until a mandate was issued,” it said. “Given that the required production was unprecedented in requiring production of communications which were protected by the attorney-client privilege, Nimitz and its counsel acted properly and ethically in not voluntarily producing the documents earlier.”