Sandvik Intellectual Property AB v. Kennametal Inc.
Filing
323
MEMORANDUM ORDER denying 302 Motion for Reconsideration of Sanctions Order. Signed by Judge Terrence F. McVerry on 12/19/2012. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SANDVIK INTELLECTUAL PROPERTY AB
)
)
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v.
KENNAMETAL, INC.
2: 10-cv-00654
MEMORANDUM ORDER OF COURT
Presently before the Court for disposition is the MOTION FOR RECONSIDERATION
OF SANCTIONS ORDER filed by Plaintiff, Sandvik Intellectual Property AB (Document No.
302) (“Sandvik”), the RESPONSE in opposition filed by Kennametal Inc. (“Kennametal”)
(Document No. 312), and the REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION
OF SANCTIONS ORDER filed by Sandvik (Document No. 314). For the reasons that follow,
the Motion will be denied.
Background
This is the second challenge by Sandvik to the Memorandum Order of September 25,
2012, in which the Court granted Kennametal’s Motion to Compel Discovery and Motion for
Sanctions. See Memorandum Order, Document No. 283. In its first challenge, Sandvik asked
the Court to reconsider only that portion of the Order which compelled Sandvik to provide “a
complete, accurate and verified, supplemental answer to Interrogatory 21. . . .” Sandvik argued
that the Court “has ordered it to state and verify facts even though they are objectively
inaccurate.” On the same day the Motion for Partial Reconsideration was filed, Sandvik did in
fact provide Kennametal with a verified Third Supplemental Answer to Interrogatory 21 “which
added information regarding when certain attorneys at Sandvik’s outside counsel, Drinker Biddle
& Reath LLP, obtained relevant knowledge before June 22, 2011.” Document 296 at 6, n.4.
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Kennametal, in response to the Motion for Partial Reconsideration and its receipt of the
Third Supplemental Answer to Interrogatory 21, informed the Court that “in light of the
information Sandvik had now provided in the form of declarations and additional discovery
compelled by the Court, Kennametal is satisfied with [Sandvik’s] Third Supplemental Answer to
Interrogatory 21 . . . . Thus, Kennametal believes the Motion is moot and should be denied.”
Document No. 299 at 7. Accordingly, on October 17, 2012, the Court denied as moot the
Motion for Partial Reconsideration filed by Sandvik.
On October 23, 2012, Sandvik filed the instant motion, in which it again challenges the
September 25, 2012 Order, but this time only as to that portion of the Order which granted
Kennametal’s request for sanctions. The matter has been fully briefed by the parties and is ripe
for disposition.
Discussion
In its Motion, Sandvik incorrectly contends that all or a portion of the sanctions awarded
in the Order was “predicated on factual findings that Kennametal now admits were incorrect.”
(Document No. 302 at 1). The Court finds this contention to be without merit. The incomplete
and unverified Second Supplemental Response to Interrogatory 21 was only one of several
deficiencies identified by the Court.
As the Memorandum Order sets forth in great detail, Sandvik was sanctioned because of
its pattern of discovery misconduct, which included months of delays, misrepresentations, and
stonewalling tactics that prevented Kennametal from obtaining timely discovery on multiple
subjects. The Court did not make a finding that Sandvik’s answer(s) to Interrogatory 21 were
“inaccurate” or “false.” Rather, the Court found that over a ten-month period, Sandvik changed
its position on its response to Interrogatory 21 a number of times, without offering any
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explanation for its varying responses. After reviewing the record, the Court observed Sandvik’s
position as “best described as a ‘moving target’ and although it has twice supplemented its
response to Interrogatory 21, the responses continue to be less than complete.” Memorandum
Order at 2. The Court then provided a chronology of the multiple attempts of Kennametal to
obtain a complete response to Interrogatory 21, all of which were met with frustration by
Sandvik’s repeated attempts to evade providing a complete response.
For example, Interrogatory 21 was first served on Sandvik on July 1, 2011. Sandvik
requested two (2) fourteen-day extensions in which to respond, to which Kennametal consented
on the express condition that Sandvik would not simply assert objections. On August 29, 2011,
Sandvik served its Response to Interrogatory 21 and, contrary to the parties’ understanding,
Sandvik provided nothing but objections. Thereafter, Kennametal repeatedly informed Sandvik
that it considered Sandvik’s response deficient and although Sandvik twice supplemented its
response, the responses continued to be less than complete.
Sandvik first supplemented its response to Interrogatory 21 on September 12, 2011, but
provided a response limited only to pre-complaint information as opposed to information up to
the deposition of Bjorn Ljungberg, as requested in the Interrogatory. Kennametal objected to
the supplemental response, and on November 4, 2011, Sandvik asserted, for the first time, a
blanket privilege for all post-complaint communication.
In response to this newly asserted blanket privilege claim, Kennametal responded that
Sandvik still must nonetheless identify all non-privileged information about those
communications, specifically the “who, what, where and when” of such communications.
Sandvik responded that it would not provide any further information about any privileged
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communications and also confirmed that there had not been post-complaint communications
between Ljungberg and non-privileged persons about the subject matter.
From November 2011 through January 2012, the parties continued to discuss Sandvik’s
deficient response to Interrogatory 21. Sandvik took the position that it did not need to further
respond to Interrogatory 21 because an unclean hands claim could not be based on postcomplaint conduct.
On January 25, 2012, Sandvik again informed Kennametal that although it had provided
all non-privileged information, it would evaluate the issue one more time. On March 1, 2012,
Sandvik informed Kennametal that it would provide a second supplemental answer to
Interrogatory 21.
On May 18, 2012, approximately one month before the close of discovery, Sandvik
provided its Second Supplemental Response to Interrogatory 21 and for the first time disclosed
non-privileged information about four post-complaint communications and significantly revealed
that, contrary to its prior multiple representations, two of the four communications did not
involve attorneys and did not appear to be privileged. Despite Kennametal’s repeated requests,
Sandvik never explained its conflicting positions nor did it contend that these two
communications were privileged.
Interestingly, in the instant motion, Sandvik now proclaims, rather self-servingly, that the
information was provided “solely as a compromise of a dispute over the discoverability of such
information and in order to avoid motion practice.” Mot. at 8.
Kennametal, relying on Dr. Brandt’s deposition testimony given in June 2010, continued
to argue that the Second Supplemental Response remained incomplete as additional relevant
information had not been disclosed. This argument proved to be true when Sandvik provided on
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October 5, 2012, as ordered by the Court in its Memorandum Order of September 25, 2012, a
verified Third Supplemental Response to Interrogatory 21 that was more complete than its prior
response. Kennametal informed the Court that it was satisfied with the Third Supplemental
Response.
It cannot be ignored that it was Sandvik’s own conduct which created the position
Sandvik finds itself in. For example, apparently Dr. Brandt incorrectly testified during his June
deposition as to the dates on which certain relevant communications occurred. However, Sandvik
refused to allow Kennametal to obtain further discovery on this issue and failed to take
reasonable or timely steps to correct the alleged inaccuracies. It was not until sometime in July
that Sandvik’s attorney first asserted via correspondence that the testimony of Dr. Brandt was
incorrect. Yet, Sandvik provided no errata, affidavit, or documentation to substantiate this
assertion by its attorney. Not until September 6, 2012, (three weeks after the completion of all
the briefing related to Kennametal’s Motion to Compel) did Kennametal receive an errata which
substantively changed Dr. Brandt’s 30(b)(6) testimony in nine (9) instances. However, it was
not until the filing of the instant Motion, on October 5, 2012, that Sandvik provided a declaration
of Dr. Brandt.
The delay in providing the errata and declaration of Dr. Brandt is yet another example of
Sandvik’s continued pattern of discovery misconduct which the Court found to have forced
Kennametal to incur significant economic consequences, i.e., attorney fees, and which warranted
the granting Kennametal’s request for sanctions.
The details expounded upon in the Court’s Memorandum Order made it clear that the
decision to sanction Sandvik was based on Sandvik’s persistent history of discovery misconduct,
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particularly its misrepresentations and stonewalling over a ten-month period, and was not
predicated on any incorrect factual findings.
The Court finds and rules that Sandvik has presented no extraordinary circumstances or
arguments which meet the high standard required to justify reconsideration. Generally, a motion
for reconsideration will only be granted if: (1) there has been an intervening change in
controlling law; (2) new evidence, which was not previously available, has become available; or
(3) necessary to correct a clear error of law or to prevent manifest injustice. Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 47 U.S. 1171 (1986). Sandvik has
pointed to no intervening change in controlling law, new evidence, a clear error of law, or
manifest injustice.
Sandvik continues to advance the same arguments that it made in response to the Motion
for Sanctions. Said arguments were previously given due consideration, but not credited by this
Court. Motions for reconsideration are not designed to provide litigants with a second bite at the
apple. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995).
Fatal to the pending motion, nothing new has been supplemented to the record by the
Motion for Reconsideration.
For all these reasons, the Court finds that the Motion for Reconsideration of Sanctions
Order is without merit and is DENIED.
So ORDERED this 19th day of December, 2012.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
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cc:
Jeffrey G. Killian, Esquire
Morgan Lewis & Bockius
Email: jkillian@morganlewis.com
Ronald L. Grudziecki, Esquire
Drinker Biddle & Reath
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William P. Quinn , Jr., Esquire
Morgan, Lewis & Bockius LLP
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Carrie A. Beyer, Esquire
Drinker Biddle & Reath LLP
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David W. Marston, Jr., Esquire
Morgan, Lewis & Bockius LLP
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Elaine P. Spector, Esquire
Drinker, Biddle & Reath, LLP
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Elisa P. McEnroe, Esquire
Morgan, Lewis & Bockius LLP
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Jeffrey J. Lopez, Esquire
Drinker Biddle & Reath LLP
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John D. Ferman, Esquire
Drinker Biddle & Reath, LLP
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John V. Gorman, Esquire
Morgan, Lewis & Bockius
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Cohen & Grace, LLC
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Squire J. Servance, Esqiure
Morgan, Lewis & Bockius, LLP
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Daniel R. Taylor, Jr., Esquire
Kilpatrick Townsend & Stockton LLP
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Eric G. Soller, Esquire
Pietragallo, Bosick & Gordon
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Alan G. Towner, Esquire
Pietragallo, Bosick & Gordon
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Kilpatrick Townsend & Stockton LLP
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Kilpatrick Townsend & Stockton LLP
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