The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS [Doc. No. 148]
Plaintiff Joon Park moves the court for evidentiary sanctions to exclude specific testimony and documents due to defendant Kreg Tool's alleged discovery violations regarding Kreg Tool's DB50 machine. Park also requests attorneys fees and costs for bringing this motion. Kreg Tool opposes, arguing that the evidentiary sanctions are not warranted because it properly initially disclosed and properly amended its disclosures to reflect the recently produced information. The court has considered all arguments in support of and in opposition to this motion, and for the following reasons, DENIES the motion for sanctions.
The parties held a Rule 26(f) conference and filed a report of their meeting on August 15, 2008. In that report the parties confirmed that they would exchange initial disclosures on August 11, 2008. The court held an Early Neutral Evaluation and issued a scheduling order on August 19, 2008. In that order the court set the fact discovery deadline for August 7, 2009 and the expert discovery deadline for October 30, 2009.*fn1
On November 16, 2009 the court issued an order extending the remaining pretrial dates. Under the amended schedule, the last date to file dispositive motions is March 19, 2010. The pretrial conference is set for May 21, 2010 and the first day of trial is set for June 21, 2010.
Discovery on the Foreman DB50 Machine
Kreg Tool claims that it offered the Foreman DB50 machine for sale in 2002 and 2003. Whether the DB50 existed and in what form it existed is relevant to whether it constitutes relevant prior art to the patent at issue, Park's '373 patent. Kreg Tool asserts that it previously produced and disclosed evidence of the DB50 to Park. In its final invalidity contentions, Kreg Tool identified these documents regarding the DB50: press release, manual, sales sheet, catalogs and invoice, picture, DB50 video, and invoices. Farrel Decl. Ex F. In other discovery, Kreg Tool produced financial records for the DB50 that date back to the July-September 2002 quarter.
In his business plan of January 2005, Park includes a picture and description of the DB50. Farrell Decl. Ex. E, pp.5-6. At his deposition Park testified that he knew about the DB50:
Q: [P]age 6 of your business plan, is that a picture of a Foreman - a Kreg Tool Foreman DB50?
Q: Where did you obtain that picture?
Q: From the Kreg Tool website?
Q: So you knew about the DB50 back in - in late ...