ACI Worldwide Corp. v. MasterCard Technologies, LLC et al

Filing 448

ORDER - Defendants' Motion to Strike Plaintiff's Fourth Supplemental Answer to Interrogatory No. 1 and Request for Expedited Relief (Filing No. 425 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ACI WORLDWIDE CORP.,
Plaintiff,
v.
MASTERCARD TECHNOLOGIES,
LLC and MASTERCARD
INTERNATIONAL
INCORPORATED,
Defendants.

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8:14CV31
ORDER

This matter is before the court on the Motion to Strike Plaintiff’s Fourth
Supplemental Answer to Interrogatory No. 1 and Request for Expedited Relief (Filing No.
425) filed by Defendants, MasterCard Technologies LLC and MasterCard International
Inc. (collectively, “MasterCard”).

The court will grant the motion to strike.

MasterCard served ACI with MasterCard’s First Set of Interrogatories on August 8,
2014. (Filing No. 41). Interrogatory No. 1 asked ACI to “[i]dentify with particularity
each ACI trade secret alleged to have been misappropriated by [MasterCard].”

On

September 23, 2016, ACI served MasterCard with ACI’s fourth and final supplemental
answer to Interrogatory No. 1, identifying over 400 “examples” of source code files, 99
“exemplar

documents”

of

source

code

evidencing

MasterCard’s

continued

misappropriation of ACI’s trade secrets, and 47 pages of source code pursuant to Fed. R.
Civ. P. 33(d). (Filing No. 428). MasterCard seeks to strike ACI’s fourth supplemental
answer to Interrogatory No. 1 because: (1) it contradicts ACI’s Rule 30(b)(6) testimony;
(2) it was untimely; (3) it improperly expands the scope of the case beyond ACI’s
allegations in the Amended Complaint; and (4) it appears calculated to require the court to
reopen discovery. (Filing No. 425 at pp. 2-7).

1

Pursuant to Federal Rule of Civil Procedure 26(e)(1), a party must supplement a
response to an interrogatory “in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing” or “as ordered by the court.” Fed. R. Civ. P. 26(e)(1).
Rule 37(b)(2) and (c)(1) provides that a party’s supplemental response may be stricken for
failure to comply with the court’s progression orders and Rule 26(e), without a showing of
substantial justification.
The court agrees with MasterCard that ACI’s fourth supplemental answer to
Interrogatory No. 1 should be stricken.

The sixth amended final progression order

provided September 23, 2016, as the deadline to serve “any supplements to answers to
interrogatories, or responses to requests for production, based on information learned or
discovered through fact depositions[.]” (Filing No. 322 at p. 2). ACI served its fourth
supplemental answer to Interrogatory No. 1 on September 23, 2016. However, ACI’s
fourth supplemental answer is not based on information learned or discovered through fact
depositions. Interrogatory No. 1, which was first served on ACI more than two years ago,
asked ACI to “[i]dentify with particularity each ACI trade secret alleged to have been
misappropriated by [MasterCard].”

In ACI’s most recent supplemental answer, it

identifies over 400 “examples” of source code files and 99 “exemplar documents” in
addition to numerous pages of source code file names. ACI asserts its supplemental
answer simply “elaborated upon [MasterCard’s] misappropriation of its previously
identified trade secrets” and includes “examples” of ACI’s previously disclosed trade
secrets. (Filing No. 434 at pp. 19-20). ACI does not assert it learned new information
from fact depositions; rather, ACI asserts MasterCard’s corporate witness “further
confirmed many of the allegations about [MasterCard’s] misappropriation.” (Filing No.
434 at p. 16).

2

In order to conduct discovery and defend ACI’s claims of trade secret
misappropriation, MasterCard asked ACI very early in the case to identify those trade
secrets. See, e.g. Porous Media Corp. v. Midland Brake Inc., 187 F.R.D. 598, 600 (D.
Minn. 1999) (“Ordering the listing of trade secrets at the outset of the litigation is a
common requirement.”). ACI would have long-known what information and materials it
provided to MasterCard that ACI alleges were its trade secrets, and in fact has previously
argued to the court that it has clearly identified its trade secrets from the beginning of this
action. (See Filing No. 94). Written discovery in this case closed on February 1, 2016,
and the deadline to complete expert witness depositions is December 30, 2016. (See
Filing Nos. 322; 447). In consideration of the facts and circumstances of this case, the
court sees no reason why ACI should be permitted to expansively supplement its answer to
Interrogatory No. 1 at this late juncture. Accordingly,
IT IS ORDERED: Defendants’ Motion to Strike Plaintiff’s Fourth Supplemental
Answer to Interrogatory No. 1 and Request for Expedited Relief (Filing No. 425) is
granted.

DATED: November 10, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

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