Interrogatory Responses Supplemented by Deposition Testimony

Posted on August 22, 2007 by R. David Donoghue

Fast Food Gourmet, Inc. v. Little Lady Foods, Inc., No. 05 C 6022, 2007 WL 2156665 (N.D. Ill. Jul. 26, 2007) (Cole, M.J.)

Judge Cole granted in part defendant Little Lady Foods’ (“LLF”) Fed. R. Civ. P. 37 motion to bar evidence of allegedly late–identified trade secrets. Plaintiff Fast Food Gourmet (“FFG”) originally identified four trade secret elements of its process for making thin crust frozen pizza (you can read more about this case in the Blog's archives). FFG’s Vice President of Operations Crause identified four additional elements during his deposition. And FFG later identified two additional elements. LLF argued that FFG should be limited to the first four elements because FFG never updated its interrogatory responses to include the six additional elements. The Court held that the four additional elements disclosed during the deposition had “otherwise been made known” pursuant to Fed. R. Civ. P. 26(e) and, therefore, were not required to be added to FFG’s interrogatory responses. The Court excluded the other two elements. FFG argued that it had identified the elements by identifying documents containing the elements in its interrogatory responses pursuant to Fed. R. Civ. P. 33(d). But the Court held that the documents FFG identified only identified the two elements sporadically, and in connection with elements that were not trade secrets. This, combined with Crause’s testimony that he had identified all of the trade secret elements, made FFG’s Rule 33(d) statements insufficient.

Practice Tip: Rule 33(d) is often seen as a simple escape from answering cumbersome or difficult interrogatories. Of course, it is also often warranted. But when you use Rule 33(d), make sure to identify the correct documents, and make sure the identified documents fully support your position.

Tags: , , , , , , , , , , , , , , , ,

Comply With Discovery Orders or Suffer the Consequences

Posted on September 21, 2006 by R. David Donoghue
Ropak Corp. v. Plastican, Inc., No. 04 C 5422, 2006 WL 2385297 (N.D. Ill. Aug. 15, 2006) (Valdez, Mag. J.).

Magistrate Judge Valdez’s opinion ruled on plaintiff’s Rule 37 motion for sanctions based upon defendant’s repeated refusal to fully meet its discovery obligations in this patent infringement dispute. The opinion demonstrates an important point: a party must comply with a court’s discovery orders (even orders issued by the most reasonable and forgiving court, as here) or suffer the consequences.

Defendant failed to sufficiently produce documents, answer interrogatories and respond to requests for admission after the Court, over a six month period, repeatedly ordered defendant to comply with its discovery obligations and repeatedly threatened sanctions. After each order, defendant took additional action, but it never fully met its obligations or the Court’s requirements. For example, defendant answered interrogatories by citing Rule 33(d), but failed to identify ranges of documents that were responsive to the interrogatories. After being ordered to fully answer or specify documents, defendant specified document ranges, but did not produce all documents responsive to the interrogatories.

The Court gave defendant a final chance to comply with the Court’s previous orders. The Court provided Defendant with five additional days to produce documents, and held that Defendant would not be allowed to rely upon any documents not produced by that deadline. The Court also deemed admitted a Request for Admission that defendant repeatedly failed to fully answer.

The Court also noted one of the paradoxes of document production: generally, when a party claims that its opponent has not fully produced documents, but that party claims that it has fully produced or just does not have any of the type of documents, the Court cannot be sure which party is correct. The Court concluded that it must rely on the facts available and the veracity of counsels’ statements.

Tags: , , , , , , , , ,