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.