Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Nutrinova Nutrition Specialties & Food Ingredients GmbH v. Viachem, No. 07 C 4232, Min. Order (N.D. Ill. Nov. 21, 2007) (St. Eve, J.).

Judge St. Eve granted in part plaintiff’s motion to compel various discovery. The Court ordered defendants to produce various once-privileged documents disclosed to unidentified customers pursuant to an alleged common interest privilege. The Court acknowledged that common interest could protect such disclosures. But defendants failed to identify the specific customers that were shown documents, which documents were disclosed or when the disclosures occurred. On that record, the Court could not find that defendants had maintained the privilege. 

The Court also ordered defendants to update their privilege log to identify any attorneys on the log. And the Court ordered the parties to meet and confer regarding uncrystalized disputes over defendants’ answers to some interrogatories.

Practice Tip: It is the rare judge that appreciates discovery motions, let alone motions where the parties did not identify what the actual issues were. It is very important to follow both the letter and the spirit of Local Rule 37.2 meet and confers.

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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.

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