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RAH Color Technologies LLC v. Quad Graphics

United States District Court, E.D. Wisconsin

July 9, 2018

RAH COLOR TECHNOLOGIES LLC, Plaintiff,
v.
QUAD GRAPHICS, Defendant.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE

         1. INTRODUCTION

         This is 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 part.[1]

         2. ANALYSIS

         Plaintiff's 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 accused products.

(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. 1993).

         2.1 Verification

         Federal 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.

         Defendant 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.

         Plaintiff 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 ...


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