United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
an action for patent infringement. Plaintiff holds patents on
various color printing technologies and claims that Defendant
is using those technologies in its printing business without
a license. (Docket #89). Plaintiff filed a motion to compel
certain discovery responses on April 16, 2018. (Docket #95).
The motion is now fully briefed. (Response, Docket #97;
Reply, Docket #100). For the reasons explained below, the
motion will be granted in part and denied in
motion seeks four things:
1. As required by Rule 33(b)(5), verifications of
[Defendant]'s interrogatory responses 7-16;
2. As required by Rule 33, responses to interrogatories 10-13
that provide the requested facts;
3. As required by Rule 34(b)(2)(C) and 34([b])(2)([B]),
unequivocal, specific responses to [Plaintiff's] document
requests, or an Order that [Defendant] has waived its
objections to the document requests 4-17; and
4. Fact discovery about the full scope of [Defendant]'s
(Docket #95-1 at 3). The Court will address each issue
separately below. District courts have broad discretion in
deciding matters relating to discovery. Packman v.
Chicago Tribune Co., 267 F.3d 628, 646-47 (7th Cir.
2001); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir.
Rule of Civil Procedure (“FRCP”) 33(b)(5) states
that a person answering interrogatories must sign them.
Fed.R.Civ.P. 33(b)(5). Plaintiff says that Defendant has
repeatedly failed to provide verification for its
interrogatory responses, claiming that the verification would
be provided “in due course, ” but never actually
doing so. Defendant counters that it has now provided the
desired verification, rendering the issue moot. Defendant
further contends that the lack of verification should not
have impeded Plaintiff's discovery efforts. Plaintiff
rejoins that the new verifications are equivocal and do not
actually comply with FRCP 33.
believes, without justification, that it can delay in
providing verification of discovery responses based on the
time and effort it would take to obtain such verification.
This position is unsupported by FRCP 33. Plaintiff's
motion must, therefore, be granted on this point. Defendant
must immediately provide rule-compliant verifications for the
subject interrogatories. Plaintiff further requests that
future discovery responses be accompanied by verifications.
In light of Defendant's past noncompliance with the
verification rule, the Court will order this as well.
also seeks its fees and costs on this portion of its motion.
There are two problems with this request. First, Plaintiff
raised the fee issue for the first time in its reply brief.
Thorncreek Apartments III, LLC v. Mick, 886 F.3d
626, 636 (7th Cir. 2018) (“[A]rguments raised for the
first time in a reply brief are waived.”) (quotation
omitted). Second, Plaintiff cites the wrong rule. Plaintiff
notes that if a motion to compel is granted, an award of fees
and costs is mandatory (with some exceptions). Fed.R.Civ.P.
37(a)(5)(A). However, if a motion is not granted in its
entirety, as is the case here, the Court is afforded
discretion to award the movant its expenses. Id.
37(a)(5)(C). The Court will not order the payment of ...