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

Se-Kure Controls, Inc. v. Vanguard Prods. Group, Inc., No. 02 C 3767, 2007 WL 781250 (N.D. Ill. Mar. 12, 2007) (Cole, Mag. J.).

Judge Cole denied plaintiff's motion to exclude plaintiff's document as a Rule 37 sanction for defendants' failure to identify its potential reliance upon the document and the person who created it.  During the discovery process, plaintiff produced a "Contact Report" listing calls made by one of its sales employees (who eventually left plaintiff's employ).  Defendants sought to rely upon the document as part of their 35 USC Section 102(b) on sale bar defense (similar to the issue in the Court's last opinion in this case).  Plaintiff argued that defendants should not be allowed to rely upon the document because:  1) defendants failed to identify the Contact Report in their responses to plaintiff's invalidity interrogatory; and 2) defendants did not identify the Contact Report's author (plaintiff's former employee) in their Rule 26 disclosures.  As with plaintiff's previous Rule 37 arguments, the Court denied them because defendants made plaintiff aware of the documents during discovery.  The Court noted that plaintiff was arguing defendants should be barred from relying on a document plaintiff produced for failure to identify plaintiff's document to plaintiff.  The Court was not swayed by defendants' failure to identify the Contact Report's author because he was plaintiff's ex-employee and because he had passed away and, therefore, would not be brought as a witness.  Finally, the Court explained that while a party has a right to be apprised of an opposing party's evidence, but not necessarily the weight or significance the opposing party places on that evidence.

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Se-Kure Controls, Inc. v. Vanguard Prods. Group, Inc., No. 02 C 3767, 2007 WL 781253 (N.D. Ill. Mar. 7, 2007) (Cole, Mag. J.).

Judge Cole denied plaintiff's motion to exclude two defense witnesses as a Rule 37 sanction for failing to properly disclose the witnesses.  During the discovery process, defendants identified two witnesses, through declarations signed by the witnesses, as having knowledge of a 35 USC Section 102(b) on sale bar.  Although defendants provided plaintiff the witnesses' declarations and otherwise identified the witnesses to plaintiff, defendants failed to add the witnesses to their respective Rule 26 disclosures and they failed to supplement their respective responses to plaintiff's interrogatory seeking details of all of defendants' invalidity defenses.  Plaintiff argued that these failures led to plaintiff's decision not to depose the witnesses and that defendants' should be barred from relying upon the witnesses for failure to update their Rule 26 disclosures and interrogatory responses.  The Court, however, held that while nondisclosure would generally result in exclusion, exclusion was not warranted in the instant case because defendants did disclose the witnesses in writing.  As a result, "[s]upplementation would have availed nothing required by the [Federal] Rules and was thus unnecessary."

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