IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`WAG ACQUISITION, L.L.C.,
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` Plaintiff,
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`v.
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`TECHNIUS LTD., d/b/a STRIPCHAT.COM,
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` Defendant.
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`CASE NO. 2:24-CV-00714-JRG
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`MEMORANDUM OPINION AND ORDER
`Before the Court is the Motion to Compel (the “Motion”) filed by Plaintiff WAG
`Acquisition, L.L.C. (“Plaintiff”). (Dkt. No. 31.) In the Motion, WAG asks the Court to compel
`Defendant Technius Ltd., d/b/a stripchat.com (“Defendant”) “to produce documents required by ¶
`3 of the Discovery Order (Dkt. No. 23) and P.R. 3-4(a).” (Id. at 1.) Having considered the Motion
`and its related briefing, and for the reasons set forth herein, the Court is of the opinion that it should
`be GRANTED.
`I. BACKGROUND
`On August 30, 2024, Plaintiff filed the Original Complaint for Patent Infringement (the
`“Complaint”) against Defendant Technius Ltd., d/b/a stripchat.com (“Defendant”). (Dkt. No. 1.)
`In the Complaint, Plaintiff alleges that Defendant infringed three (3) of its now-expired patents:
`U.S. Patent No. 10,567,453; U.S. Patent No. 8,364,839, and 8,185,611 (collectively, the “Asserted
`Patents”). (Dkt. No. 1 ¶ 8.)
`The Asserted Patents generally relate to streaming a live program to a plurality of users
`from a single, common server-side buffer, even though the various users may be at different points
`in the stream. ( Id. ¶ 15.) Plaintiff specifically alleges that Defendant’s “internet streaming
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`services, servers, and web sites branded as Stripchat” and its affiliate/white-label webcam servers
`and sites (the “Accused Instrumentalities”) infringed the Asserted Patents during their respective
`terms. (Dkt. No. 32-1 at 1.)
`II. LEGAL STANDARD
`The rules of discovery “are to be accorded a broad and liberal treatment to effect their
`purpose of adequately informing the litigants in civil trials.” Herbert v. Lando, 441 U.S. 153, 176
`(1979). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
`party’s claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). Rule
`37 allows a discovering party, on notice to other parties and all affected persons, to “move for an
`order compelling disclosure or discovery.” FED. R. CIV. P. 37(a)(1). “The moving party bears the
`burden of showing that the materials and information sought are relevant to the action or will lead
`to the discovery of admissible evidence.” Tim Long Plumbing, Inc. v. Kinsale Ins. Co., No. 4:20-
`cv-00042, 2020 WL 6559869, at *2 (E.D. Tex. Nov. 9, 2020) (citing Export Worldwide, Ltd. v.
`Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006)). Once the moving party establishes that the
`materials requested are within the scope of permissible discovery, the burden shifts to th e party
`resisting discovery to show specifically why the discovery is irrelevant, overly broad, unduly
`burdensome or oppressive, and thus should not be permitted. Id.
`Under Federal Rule of Civil Procedure 34(a)(1), a party may serve on any other party a
`request to produce documents “in the responding party’s possession, custody, or control.” “Rule
`34 is broadly construed and documents within a party’s control are subje ct to discovery, even if
`owned by a nonparty.” United My Funds, LLC v. Perera , Case NO. 4:19 -CV-00373, 2020 WL
`1225042 (E.D. Tex. Mar. 12, 2020) (citing Mir v. L-3 Commc’n. Integrated Sys., L.P , 319 F.R.D.
`220, 230 (N.D. Tex. 2016) (citing S. Filter Media, LLC v. Halter, 2014 WL 4278788, at *5 (M.D.
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`La. Aug. 29, 2014))). “Typically, what must be shown to establish control over documents in the
`possession of a non -party is that there is ‘a relationship, either because of some affiliation,
`employment or statute, such that a party is able to command release of certain documents by the
`non-party person or entity in actual possession.” Id. (citations omitted) (emphasis added); see also
`Diamond Consortium, Inc. v. Manookian, Case NO. 4:16-CV-00094-ALM, 2017 WL 3301527, at
`*9 (E.D. Tex. Aug. 03, 2017) (citi ng Estate of Monroe v. Battle Rock Power Corp. , 2004 WL
`737463, at *3 (E.D. La. 2004)). “The burden, however, is on the party seeking discovery to make
`a showing that the other party has control over the documents sought.” Diamond Consortium,
`2017 WL 3301527 at *9.
`III. ANALYSIS
`Plaintiff argues that the Court should compel Defendant to produce all documents and
`materials required by ¶ 3(b) of the Court’s Discovery Order (Dkt. No. 23) and P.R. 3-4(a). Plaintiff
`asserts that compulsion is warranted because Defendant has produced nothing in this case.
`Plaintiff further maintains that Defendant defends its lack of production by making “nonsensical[]”
`excuses. (Dkt. No. 31 at 4.) As support, Plaintiff points to Defendant’s argument that the Motion
`to Dismiss (Dkt. No. 9) must be resolved before discovery can proceed. (Dkt. No. 31 -2, at 1.)
`Additionally, Plaintiff asserts that any current technical material in Defendant’s possession is
`relevant to Defendant’s past infringement. (Dkt. No. 31 at 7.) According to Plaintiff, it may use
`such materials to demonstrate that Defendant has a routine practice that infringed the Asserted
`Patents under Federal Rule of Evidence 406. (Id.)
`Defendant responds by arguing that compulsion is unwarranted on three (3) grounds. First,
`Defendant insists that it “is not refusing to produce relevant and responsive documents.” ( Id. at
`1.) Instead, Defendant represents that , despite its “best efforts,” it is unable to find any relevant
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`documents at all as the alleged infringement occurred years ago or the documents are under a third
`party’s control. (Id. at 2.) Second, Defendant argues that it has no obligation to produce documents
`pertaining to its websites outside of the Infringement Period (August 30, 2018 to September 4,
`2022). (Id. at 3–4.) Specifically, Defendant asserts that those documents are “not relevant to any
`claim or defense in the action.” ( Id. at 4.) Lastly, Defendant contends that it cannot determine
`which documents are relevant and, thus, need to be produced. (Id. at 5–6.) As support, Defendant
`cites to Plaintiff’s identification of the Accused Instrumentalities. (Id. at 6 (quoting Dkt. No. 32-
`1).) According to Defendant, “this vague definition does not provide adequate notice to Defendant
`of the full scope of the Accused Instrumentalities.” (Id.)
`The parties dispute whether Defendant’s technical material from after the Infringement
`Period is relevant. Evidence is relevant if it has any tendency to make a fact of consequence more
`or less probable than it would be without the evidence. FED. R. EVID. 401. In other the words,
`“the evidence must be probative of the proposition it is offered to prove,” and “the proposition to
`be proved must be one that is of consequence to the determination of the action.” U.S. v. Hall, 653
`F.2d 1002, 1005 (5th Cir. 1981) (citations omitted). Here, Plaintiff alleges that the technical
`material is probative of Defendant’s routine practice and that Defendant’s routine practice may be
`used to prove infringement of the Asserted Patents during the patents’ term under Federal Rule of
`Evidence 406. The Court finds that, under the “broad and liberal[ly]” construed discovery rules,
`the technical material is relevant and should be produced. Herbert v. Lando, 441 U.S. 153, 176
`(1979).
`Additionally, none of Defendant’s arguments are persuasive. Defendant has an obligation
`to produce relevant documents that are discoverable under ¶ 3(b) of the Discovery Order (Dkt. No.
`23) and P.R. 3-4(a). Defendant is not “excused from disclosure” because the Motion to Dismiss
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`(Dkt. No. 9) is pending. (Dkt. No. 23 ¶ 10.) Despite these provisions and their deadlines, it is
`undisputed that Defendant has not produced a single document thus far in this case. (See Dkt. No.
`32-2 ¶ 6 (“we have not yet been able to locate relevant materials”).) Accordingly, and considering
`the complete failure by Defendant to comply with its discovery obligations, the Court finds that
`compulsion is warranted here.
`IV. CONCLUSION
`For the reasons stated herein , the Court finds that the Motion should be and hereby is
`GRANTED. Accordingly, the Court COMPELS Defendant to produce all documents required
`by ¶ 3(b) of the Discovery Order (Dkt. No. 23) and P.R. 3-4(a) within ten (10) days from the date
`of this Order.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`So ORDERED and SIGNED this 19th day of August, 2025.
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