Fast Food Gourmet, Inc. v. Little Lady Foods, Inc., No. 05 C 6022, 2007 WL 1673563 (N.D. Ill. Jun. 8, 2007) (Cole, J.).
Judge Cole denied plaintiff Fast Food Gourmet, Inc.’s ("FFGI") motion to compel responses to interrogatories, in this trade secret case involving frozen pizzas (you can read more about this case in the Blog’s archives). FFGI served defendants with an interrogatory seeking information regarding which brands of frozen pizza (aside from the accused DiGiorno Thin Crispy Crust Pizza) defendants baked in the ovens which were allegedly part of FFGI’s trade secret crust-making process for stone hearth oven, thin crust, frozen pizzas. Defendants objected to the interrogatory, which led to a meet and confer between the parties on February 15, 2007, two weeks before the close of fact discovery on March 1. The meet and confer did not resolve the dispute. On April 1, FFGI submitted its expert reports and then, six weeks after the close of discovery, FFGI moved to compel responses to the interrogatories. But FFGI failed to notice the motion until more than one month later on May 18. The Court noted that, while it had discretion to grant the motion, motions to compel filed after the close of fact discovery are generally held to be untimely unless accompanied by a "reasonable and persuasive justification" for the delay. FFGI, however, provided no justification for its delay.
But the Court ultimately denied FFGI’s motion not because it was untimely, but because the evidence lacked evidentiary value. FFGI assured the Court that it would not seek any other discovery after receiving the interrogatory responses. FFGI had also repeatedly taken the position that its trade secrets crust-making process involved the combination of various elements and processes including the ovens that were the focus of FFGI’s interrogatories, but that the ovens alone were not a trade secret. The interrogatory responses alone , therefore, were of no value. They would necessarily require additional discovery to be relevant to the case. For example, it was not enough to know which other pizzas were baked in the ovens. FFGI would need to know how each pizza baked in the oven was prepared in order to determine whether the pizzas were made using the FFGI trade secrets. That would require additional fact discovery, but fact discovery was already closed. The Court, therefore, denied FFGI’s motion to compel.
Practice tip: File your discovery motions on or before the close of discovery. And always explain to the Court why you need documents or interrogatory responses, particularly if you are seeking them after the close of discovery.