In Personalized Media Communications , LLC v. Amazon.com Inc., C.A. No. 13-1608-RGA (D. Del. Aug. 20, 2015), Special Master Paul M. Lukoff denied plaintiff’s motion for sanctions, which raised two distinct applications for relief: “(i) it wanted sanctions against Amazon for discovery misconduct, and (ii) it wanted [the court] to once more consider ordering Amazon to finally deliver source code packages which had still not been produced despite plaintiff’s relentless efforts.” Id. at 2. As to the first issue, the Special Maser explained that following Judge Andrews’ grant of judgment on the pleadings in favor of defendants, this “case [was] closed” for purposes of “Rule 34 issues and concomitant Rule 37 enforcement features.” Id. at 2. The Special Master therefore concluded that “I have no authority to order source code production, even if I had been inclined to do so, or to order sanctions related to previous failures to produce source code.” Id. at 3. As to the second issue, the Special Master found that “the sanctions potential of Rule 37(a)(5)(A) is not worthy of invocation under these circumstances.” Id. at 8. The Special Master reasoned that “when put into the perspective of a late arriving but prospectively evolving approach to discovery of source code, I find that Amazon’s production of the recommendation service source code package in April 2015 was substantially justified.” Id.
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