Procedural efficiency at the UPC: Request for Order to produce evidence denied

In a decision issued on 20 October 2024 by the Mannheim Local Division of the UPC (UPC_CFI_471/2023), judge-rapporteur Böttcher rejected an application by the plaintiffs for an Order to produce evidence. The main proceedings underlying this decision relate to alleged contributory infringement in the context of a method for presenting rate-adaptive media streams. Amongst other applications to communicate information, the plaintiffs requested that the defendants be ordered to produce the source codes of media players of their streaming services under various browsers in order to support the infringement claim.

JR Böttcher held that it was not apparent from the current state of proceedings whether the defendants would dispute the design and relevance of the source codes in their Reply, so that, at the time the request for evidence was made, it was not yet clear that a copy of the source codes was needed for furthering the proceedings. Thus, in balancing the interest of the applicants to obtain evidence substantiating their submission against the interest of the defendants in protecting their confidential information, it was held that an Order to disclose the sources would be disproportionate in light of the facts of the proceedings. 

The plaintiffs’ case was not helped by the JR’s finding that not all available and reasonable means of obtaining evidence had been exhausted. Specifically, the source codes in question could have been obtained by the plaintiffs through paywall-based access to the streaming services. As such, the prerequisites for making an Order pursuant to Rule 190 RoP, under which the Order was sought, were not met. The lesson to be learnt is to fully explore all reasonable alternative means of obtaining evidence before seeking redress and sanction from the Court.

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