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Karl Storz Endoscopy-America, Inc. v. Stryker Corp.

United States District Court, N.D. California

September 5, 2017

KARL STORZ ENDOSCOPY-AMERICA, INC., Plaintiff,
v.
STRYKER CORPORATION, et al., Defendants.

          ORDER RE DEFENDANTS' REQUEST FOR SANCTIONS AND TO STRIKE PLAINTIFF'S 5TH SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 4 RE: DKT. NOS. 279, 280, 284

          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         The Court is in receipt of two joint discovery letter briefs.[1] (Dkt. Nos. 280, 284.[2]) Both pertain to the fifth supplemental response of Plaintiff Karl Storz Endoscopy-America (“KSEA”) to Interrogatory No. 4 served by Defendants Stryker Corporation and Stryker Communications, Inc. (together, “Stryker”). In the first dispute, Stryker asks the Court to strike KSEA's fifth supplemental response and compel an answer based on the documents cited in its Patent Local Rule disclosures and prior interrogatory responses. (Dkt. No. 280.) In the second, Stryker requests that the Court sanction KESA for violating its April 17, 2017 Order by (i) mandating that a fact-finder infer a pre-critical date sale and (ii) order KSEA to pay Stryker $24, 373.00 in attorney's fees and costs. (Dkt. No. 284.) Having considered the parties' submissions, and having had the benefit of oral argument on August 17, 2017, the Court grants in part and denies in part Stryker's requests as set forth below.

         BACKGROUND

         KSEA initiated this action more than three years ago, alleging that Stryker's medical imaging devices and operating room communication technology infringes KSEA's patents. There are four patents-in-suit.[3] (See id. ¶¶ 11-15; see also Dkt. No. 255 at 1 n.2.) On June 17, 2014, Stryker served Interrogatory No. 4 on KSEA. The interrogatory asked KSEA to identify, among other things, the date(s) when the claimed subject matter for each patent “was first offered for sale, and in public use, and the circumstances surrounding such sale, offer for sale and use.” It also asked KSEA to identify each document identifying the factual bases for Plaintiff's answers. (Dkt. No. 255-1 at 9.)

         KSEA's first two responses to Interrogatory No. 4 did not answer the offered for sale question, although the first supplemental response identified documents by bates number that it claimed “enable Stryker to derive or ascertain the requested information.” (Dkt. No. 255-1 at 9-11.) In KSEA's second supplemental response, served in August 2016, KSEA again provided Bates-stamp ranges for documents that it contended would permit Stryker to ascertain the requested information, but did not otherwise provide any information as to the date of first sale. (Id. at 11-12.)

         More than two months later, KSEA served a third supplemental objection and response to Interrogatory No. 4. There, it represented for the first time that the '420 patent was conceived “in or around late 2002 to early 2003.” (Id. at 13.) KSEA also stated that it is not “aware of any public disclosures, sales, offers for sale, or public use of the claimed inventions of the ‘420 Patent before December 29, 2003, ” but did not otherwise describe the offer for sale or public use as required by Interrogatory No. 4. (Dkt. No. 255-1 at 13.) KSEA also identified the same Bates-stamp range of documents it contended would allow Stryker to “derive or ascertain the requested information” for the ‘420 Patent. (See Dkt. No. 255-1 at 13.)

         Stryker subsequently requested that the Court, among other things, compel KSEA to identify specific dates of first disclosure, first use, first sale, and first offer for sale. (Dkt Nos. 254, 255.) The Court ordered KSEA to supplement its response to Interrogatory No. 4 within 30 days of the date of the Order, that is by May 17, 2017. (Dkt. No. 258.)

         On May 17, 2017, KSEA served its Fourth Supplemental Objections and Responses to Defendants' Interrogatory No. 4. (Dkt. No. 284-1 ¶ 2.) With respect to the first offer for sale or public use of the invention claimed by the ‘420 Patent KSEA responded: “The first sale of the claimed subject matter of the ‘420 Patent was installed in March 2005 and subsequently used after installation.” KSEA then identified by Bates number the documents supporting that assertion. (Dkt. No. 284-2 at 6.)

         Stryker complained to KSEA about its interrogatory response on May 31, 2017. KSEA responded the following day and still refused to provide a first date of first sale; instead, it claimed the graphical user interface disclosed in the documents it had cited in its interrogatory response were not offered for sale in October 2002. (Dkt. No. 284-8.)

         Twenty days later Stryker sent a draft discovery letter to KSEA seeking sanctions against KSEA for failing to comply with the Court's April 17 Order requiring KSEA to provide a first date of sale for the claimed subject matter of the ‘420 patent. (Dkt. No. 288-7.) On June 23, 2017, KSEA replied that Stryker had failed to follow the proper procedures set by the Court for resolving discovery disputes, that Stryker should have asked KSEA to supplement its response or request a meet and confer, and if Stryker had followed these proper procedures it would have learned that its work on the discovery letter was unnecessary because “newly discovered information and documents are forthcoming.” (Dkt. No. 288-8 at 2-3.)

         On this same day, June 23, 2017, KSEA served its Fifth Supplemental Response to Interrogatory 4. (Dkt. No. 280-1 ¶ 2.) The response states the claimed subject matter of the ‘420 patent was conceived by Robert Plummer on September 18, 2002, the first installation date for testing at UCLA's Center was between February and June 2004, and the first offer for sale was in June 2004 to either Celebration or the Mayo Clinic. (Dkt. 280-2 at 10:10-24.) This was the first time KSEA had suggested this first date of sale and the first time it had mentioned Celebration or the Mayo Clinic in connection with the ‘420 patent.

         Stryker now seeks to: (1) to strike KSEA's fifth supplemental response and compel an answer based on the documents cited in its Patent Local Rule disclosures and prior interrogatory responses; (2) sanction KESA for violating the Court's April 17 Order by mandating that a fact-finder infer a pre-critical date sale; and (3) order KSEA to pay Stryker $24, 373.00 in attorney's fees. (Dkt. Nos. 280, 284.)

         DISCUSSION

         I. The Fifth Supplemental ...


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