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United States Gypsum Co. v. New NGC, Inc.

United States District Court, D. Delaware

August 23, 2018

UNITED STATES GYPSUM COMPANY, Plaintiff,
v.
NEW NGC, INC., Defendant.

         Unsealed

          MEMORANDUM OPINION

          SHERRY R. FALLOR UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this patent infringement action is the motion for a protective order filed by Defendant New NGC, Inc. ("NGC"). (D.I. 107) For the following reasons, NGC's motion is GRANTED.

         II. BACKGROUND

         Plaintiff United States Gypsum Company ("USG") initiated this patent infringement suit on February 6, 2017, alleging infringement of United States Patent Nos. 6, 342, 284; 6, 632, 550; 7, 425, 236; 7, 758, 980; 7, 964, 034; 8, 142, 914; and 8, 500, 904 (collectively "the patents-in-suit"). (D.I. 1) USG develops and manufactures gypsum products used to construct walls, ceilings, roofs and floors of various types of buildings. (Id. at ¶ 4) NGC is a direct competitor of USG in manufacturing, marketing and selling gypsum products. (Id. at ¶ 5) The patents-in-suit are a group of related patents with overlapping specifications[1] and common inventors, which are directed to wallboard products with increased resistance to sag, less density, and other improved Stored Information. (D.I. 107, Ex. B) NGC and USG met-and-conferred and were able to resolve concerns regarding a number of the proposed search strings. (D.I. 107 at 2) However, the following USG email search string remains at issue:[2]

(Yakowenko OR Bushman OR Mascioli OR Griffith OR Adams OR Herold OR Guinsler OR Martinez OR Holder OR Emert OR Erhardt) AND (LWWB OR LWB OR HSL OR lite OR light OR "high strength" OR ultralight OR Sheetrock OR USG* OR "US Gypsum" OR "U.S. Gypsum" OR "United States Gypsum" OR deflect* OR sag* OR STMP* OR MCM OR phosp* OR "sodium trimeta*" OR "humid* def*" OR "HD")[3]

(Id.)

         The employees at issue were not identified in either NGC's or USG's Initial Disclosures as having relevant knowledge. (D.I. 107 at 2) Similarly, none of these individuals were identified in either NGC's or USG's disclosures pursuant to Paragraph 3 of the Default Standard as having relevant knowledge. (Id.) The parties describe the employment histories of the relevant employees, which information was obtained from their respective Linkedln profiles, as follows:

• Kevin Bushman: joined NGC in 2016; previously worked at USG for twenty years, where he served in positions such as engineering and production manager roles, as well as a Regional Sales Manager in USG's distribution subsidiary.
• Michael Emert: is no longer employed at NGC, and while at USG worked at their New Orleans' plant.
• Thomas Griffith: joined NGC in 2014; was a project engineer and engineering manager at USG's Norfolk plant.
• Kelly Guinsler: joined NGC in 2014; was involved in product demonstrations and sales ...

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