Ameranth, Inc. v. Pizza Hut, Inc. et al

Filing 1008

ORDER Denying #985 Motion to Compel without Prejudice. Defendants' motion to compel is DENIED without prejudice. Signed by Magistrate Judge William V. Gallo on 4/11/2018. (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Lead Case No.: 11-CV-1810-DMS(WVG)
IN RE: AMERANTH CASES
ORDER DENYING MOTION TO COMPEL
WITHOUT PREJUDICE

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[Doc. Nos. 985 & 1002.]

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This discovery dispute involves Plaintiff and Defendants Apple Inc., Starwood

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Hotels & Resorts Worldwide LLC, Hilton Resorts Corp., Hilton Worldwide Inc., Hilton

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Int’l Co., Eventbrite Inc., and Ticketfly Inc. The Court held a telephonic discovery

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conference on March 19, 2018 and requested additional briefing. Having considered the

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briefing and argument, the Court finds the portion of the dispute involving interrogatories

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from 2013 is untimely. As for the disputed interrogatory from 2018, the Court finds

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Common Interrogatory No. 3 (“CROG 3”) is compound and unduly burdensome.

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Defendants’ motion to compel is DENIED without prejudice.

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A.

Untimely August 2013 Interrogatories

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Under this Court’s standing Civil Chambers Rules, if a “dispute cannot be resolved

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through good faith meet and confer efforts, counsel shall jointly call chambers to notify the
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Court of a discovery dispute within thirty (30) calendar days of the date upon which the

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event giving rise to the dispute occurred.” With respect to the August 2013 interrogatories

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at issue here, this 30-day deadline began to run on August 21, 2013, the day Plaintiff served

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its responses. There is no indication that Defendants informed Plaintiff of any issues within

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those 30 days. Nor did the parties bring any dispute to the Court’s attention before the 30-

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day deadline passed. The case was then stayed on November 11, 2013, but the 30-day

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deadline had long passed by then, and the parties still had not notified the Court of any

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dispute. The parties jointly called the undersigned’s chambers about this dispute for the

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first time on March 19, 2018.

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Deadlines to bring discovery disputes exist for good reason, as it is in everyone’s

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best interest that disputes be addressed quickly and while the matter is fresh in everyone’s

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minds. Deadlines have a way of concentrating the mind on the task at hand and prevent

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parties from inundating the Court with numerous disputes at once when the Court could

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have addressed individual disputes as the case progressed. Defendants have not advanced

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any good reason why they failed to bring this dispute to the Court’s attention in a timely

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manner or why a 4.5-year delay ought to be excused. Nor can the Court think of any such

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reason. The Court finds the dispute over the sufficiency of Plaintiff’s responses to

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interrogatories 1 through 3 of Defendants’ First Set of Interrogatories is untimely and

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accordingly declines to consider the dispute. See generally Pac. Marine Propellers, Inc.

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v. Wartsila Def., Inc., No. 17CV555-BEN(NLS), 2018 U.S. Dist. LEXIS 56973, at *7 (S.D.

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Cal. Apr. 3, 2018) (finding motion to compel filed after 45-day deadline in Chambers Rules

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untimely) (Stormes, M.J.); Obesity Research Inst., LLC v. Fiber Research Int’l, LLC, No.

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15CV595-BAS(MDD), 2017 U.S. Dist. LEXIS 97724, at *5 (S.D. Cal. June 23, 2017)

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(finding Magistrate Judges’ 30-day discovery dispute deadlines in this District are not

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contrary to law) (Bashant, D.J.); cf. Roettgen v. Foston, No. 13CV1101-GPC(BGS), 2016

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U.S. Dist. LEXIS 3165, at *7 (S.D. Cal. Jan. 11, 2016) (finding excusable neglect where

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plaintiff provided credible reasons for filing motion to compel after Chambers Rules

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deadline) (Skomal, M.J.).
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Defendants contend the 30-day clock began to run anew on February 15, 2018, when

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Plaintiff refused their request for supplementation of the 2013 responses. The Court

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disagrees that the 30-day clock restarted. See Guzman v. Bridgepoint Educ. Inc., No.

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11CV69-WQH(WVG), 2014 U.S. Dist. LEXIS 35640, at *8 (S.D. Cal. Mar. 18, 2014)

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(Gallo, M.J.) (denying motion to compel as untimely and noting that “[t]he clock does not

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reset simply because Plaintiff allowed Defendants to serve untimely responses.”). Were

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the Court to accept this position, a party could resurrect an untimely discovery dispute from

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the grave at any time simply by demanding that the opposing party supplement discovery

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responses. This would render the Court’s deadline meaningless.

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B.

February 2018 Common Interrogatory No. 3

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1.

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If You contend that any of the prior art references or combinations thereof identified

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in Defendants’ Invalidity Contentions do not invalidate any of the Asserted Claims to

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which the prior art was applied, separately explain, in detail for each basis for invalidity of

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the Asserted Claims under 35 U.S.C. § 102 and/or 103 set forth in Defendants’ Invalidity

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Contentions, all grounds (including any supporting claim charts) for Your contention that

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each such claim is not invalid, including but not limited to an identification of each claim

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element which You contend is not present in the applied prior art reference(s) and any facts,

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argument, reasoning or evidence You believe supports Your position, and identify all

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persons with knowledge of the relevant facts.

The Disputed Interrogatory

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2.

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As drafted, CROG3 is compound because it requires multiple discrete and separate

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categories of information about the main subject matter of the interrogatory, which is “each

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basis for invalidity of the Asserted Claims under 35 U.S.C. § 102 and/or 103 set forth in

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Defendants’ Invalidity Contentions.” CROG3 can easily be parsed into discrete subparts

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as follows:

Ruling

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Explain, in detail for each basis for invalidity of the Asserted Claims under 35

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U.S.C. § 102 and/or 103 set forth in Defendants’ Invalidity Contentions,
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all grounds (including any supporting claim charts) for Your

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contention that each such claim is not invalid,

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1(a). including but not limited to an identification of each claim

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element which You contend is not present in the applied

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prior art reference(s)

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1(b). and any facts, argument, reasoning or evidence You

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believe supports Your position; and

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2.

identify all persons with knowledge of the relevant facts.

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Correctly parsed in this manner, the Court finds that the distinct categories of information

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numbered above constitute “discreet subparts” within the meaning of Rule 33(a)(1) and

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that, taken together, these discreet subparts render CROG3 impermissibly compound.

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Accord SPH Am., LLC v. Research in Motion, Ltd., No. 13CV2320-CAB(KSC), 2016 WL

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6305414, at *2 (S.D. Cal. Aug. 16, 2016) (interrogatory compound where it sought “[1]

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the factual basis supporting each validity contention, [2] the identity of the individual who

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have knowledge of these facts, and [3] the identity of the documents that support the

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validity contentions.”).

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Moreover, as other courts have found, CROG3’s requirement for supporting claim

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charts is unduly burdensome. See, e.g., Apple Inc. v. Wi-LAN Inc., No. 14CV2235-

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DMS(BLM), 2018 WL 733740, at *5 (S.D. Cal. Feb. 6, 2018); Friskit, Inc. v. Real

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Networks, Inc., No. C03-5085-WWS(MEJ), 2006 WL 1305218, at *1-2 (N.D. Cal. May

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11, 2006).

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Finally, in addition to arguing that CROG3 is compound and burdensome, Plaintiff

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contends CROG3 far exceeds “Defendants’ 25 interrogatory limit” because it contains a

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much larger number of discreet subparts than the Court has identified above. Specifically,

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Plaintiff contends the subparts should be calculated as follows:

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[3 Independent Claims with at least 6 elements each] + [9 Dependent Claims

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with at least 1 additional element each] x [all facts] x [all arguments] x [all

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persons with knowledge]
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(Doc. No. 1006 at 6; see also Doc. No. 1002 at 7.) Without providing an estimate of how

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many interrogatories Plaintiff believes CROG3 actually amount to, Plaintiff contends “this

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is not ‘one’ interrogatory; rather this request alone far exceeds Defendants’ 25

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interrogatory limit.” (Doc. No. 1002 at 7 (emphasis in original).) However, as explained

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below, the Court does not find CROG 3 exceeds interrogatory numerical limitations.

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Based on the parties’ supplemental briefing, it appears Defendants have propounded

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six interrogatories as a group of common defendants and have not propounded any

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interrogatories as individual defendants. Each common interrogatory counts against each

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defendant’s individual 25-interrogatory limit. (Doc. No. 334 ¶ 8(iv)(h)(2); Doc. No. 345

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¶ 8(iv)(h)(2).) Under the Court’s analysis of this compound interrogatory, it amounts to at

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most three separate interrogatories.

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interrogatories, the sum total is nine and well below the authorized limit of 25.

When added to the previous six common

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The Court disagrees with Plaintiff’s over-parsing of CROG3 in the above manner.

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“A request for a range of information in an interrogatory is considered part of a single

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question if it is logically or factually subsumed into the larger question.” SPH Am., LLC

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v. Research in Motion, Ltd., No. 13CV2320-CAB(KSC), 2016 WL 6305414, at *2 (S.D.

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Cal. Aug. 16, 2016); see also Warren v. Bastyr Univ., No. 11CV1800-RSL, 2013 WL

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1412419, at *1 (W.D. Wash. Apr. 8, 2013); Safeco of Am. v. Rawstron, 181 F.R.D. 441,

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444 (C.D. Cal. 1998). Here, although Plaintiff is correct that CROG3 is compound, the

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Court disagrees about the number of discreet subparts CROG3 contains. Specifically, the

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Court disagrees that each Independent Claim or Dependent Claim and each element within

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them count as a separate subparts. Rather, the Dependent and Independent Claims are

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logically and factually subsumed into the larger question of the claimed invalidity of the

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Asserted Claims.

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In this Court’s estimation, CROG3 would not be compound or multiplicitous if, for

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example, it asked only for “all grounds for Your contention that each [Asserted Claim] is

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not invalid” with respect to the “basis for invalidity” of the Asserted Claims. This

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hypothetically modified CROG3 asks for one category of information (“all grounds for
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Your contention that each [Asserted Claim] is not invalid”) about a single subject matter

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(“basis for invalidity of the Asserted Claims . . . set forth in Defendants’ Invalidity

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Contentions”). If Plaintiff is required to analyze various Dependent and Independent

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Claims and their elements to answer this one question, that analysis is logically and

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factually subsumed into the “basis for invalidity” question. That the inquiry into this single

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subject matter may necessitate a foray into other inextricably-interdependent areas does

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not render CROG3 multiplicitous. Plaintiff being required to engage in this extended

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analysis is an unavoidable result of the complexity of the case that Plaintiff brought. The

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main call of CROG3 is fair game and proportional in this complex case. Moreover, its

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subject matter is relevant, and it is fair game that a plaintiff that has sued scores of

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companies should be held to answer it.

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Based on the foregoing, Defendants’ motion to compel is DENIED without

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prejudice.

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IT IS SO ORDERED.

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DATED: April 11, 2018

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