Ficep Corporation v. Voortman USA Corp

Filing 143

MEMORANDUM AND ORDER: CONTEMPT PROCEEDINGS granting 127 Motion for Order to Show Cause Why It Should Not Be Held in Contempt. Signed by Judge Marvin J. Garbis on 1/4/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FICEP CORPORATION,

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Plaintiff
vs.

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VOORTMAN USA CORP.,

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CIVIL ACTION NO. MJG-13-0429

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Defendant

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MEMORANDUM AND ORDER: CONTEMPT PROCEEDINGS
The Court has before it Voortman USA Corp.’s Motion for an Order
Directing Ficep Corporation to Show Cause Why It Should Not Be Held
In Contempt [ECF No. 127] and the parties’1 responses to the Order
Re: Contempt Proceedings [ECF No. 131]
There is at least probable cause to believe that Plaintiff Ficep
Corporation (“Ficep”) and/or its counsel violated the Stipulated
Protective Order [ECF No. 38] (“the Order”), specifically, the
paragraph stating:
2. All information produced in discovery by any
party or non-party shall be used solely
for the purpose of this district court
litigation and any appeals from this district
court litigation.
There is no doubt that Defendant Voortman USA Corp. (“Voortman”)
produced in discovery, the identity of 36 of its customers -

HME,

Quality Iron and 34 others - and their purchases of pertinent
products.
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On November 3, 2016, Plaintiffs’ counsel sent letters to

Plaintiff filed a response signed by its counsel.

counsel for HME and Quality Iron, mentioning the possibility that
their clients might be sued for infringement by Ficep.

Then, on

November 16, 17, and 18, Plaintiffs’ counsel sent letters to the other
34 customers that Voortman had identified in discovery.

These

letters, addressed “to whom it may concern” at the customers’ address
made statements about the instant litigation and offered a license
to the patents in suit for $35,000.00.
Plaintiff contends that it (or its counsel) had obtained the
identity of a number of the letter recipients from sources other than
discovery from Voortman.

Plaintiff shall, presumably, present

evidence to establish the extent to which this assertion is true.
In any event, Plaintiff does not deny that the identity of some of
the letter recipients was obtained from discovery subject to the
Protective Order.

Hence, Plaintiff and/or its counsel used

information provided by Voortman in discovery to send at least some
of the 34 aforesaid letters sent on November 16-18, 2016.
Plaintiff contends that sending the letters was “for the purpose
of this district court litigation.”

It suffices, for the present,

to state that this contention shall be considered in light of the
pertinent evidence.
Plaintiff contends that it and its counsel acted in a good faith
belief that they were in compliance with the Protective Order.

This

contention will be considered in light of the evidence which, among

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other things, will presumably clarify what Plaintiff and its counsel
did and evidence relating to their claimed good faith.
The Court notes the existence of issues regarding the contempt
proceedings, including but not limited to, whether Plaintiff will
choose to have independent counsel, and the remedial action to take
should there be a contempt finding.
The Court is not, by this Memorandum and Order, resolving, or
even addressing, all of the issues presented in regard to a finding
of contempt on the part of Plaintiff and/or its counsel.

The Court

is finding, however, that on the current state of the record, there
is ample cause for contempt proceedings.
For the foregoing reasons:
1.

Voortman USA Corp.’s Motion for an Order Directing
Ficep Corporation to Show Cause Why It Should Not Be
Held In Contempt [ECF No. 127] is GRANTED.

2.

Plaintiff Ficep Corporation and its counsel shall
show cause why the Court should not find one or both
in contempt for violating the Protective Order.

3.

Defendant Voortman USA Corp. shall arrange a
telephone conference, to be held by January 10, 2017
to set the date for the show cause hearing and discuss
what proceedings, if any, may be necessary prior to
the hearing.

SO ORDERED, on Thursday, January 04, 2017.

/s/__________
Marvin J. Garbis
United States District Judge
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