In an action for patent infringement regarding internet search engine advertising systems, the plaintiff brought a motion under Rule 227 of the Federal Courts Rules seeking an order requiring the defendants to produce a further and better affidavit of documents or to allow cross-examination on their affidavit of documents.
The plaintiff argued that the defendants' amended defence and expert reports introduced new theories of non-infringing alternatives, suggesting further undisclosed documents likely existed.
The Court found that the plaintiff's arguments were largely speculative and failed to meet the burden of showing that further documents likely existed with convincing evidence.
The motion was dismissed, but the defendants were ordered to serve a current sworn or affirmed affidavit of documents to reflect additional productions made since their original affidavit.
