Quest Software v. Centrify Corporation et al
MEMORANDUM DECISION and Order denying 85 Plaintiff's Motion to Exclude Prior Art References. The hearing set for September 27, 2011 is STRICKEN. Signed by Judge Ted Stewart on 08/25/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
QUEST SOFTWARE, INC.,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION TO EXCLUDE PRIOR ART
CENTRIFY CORPORATION and
LIKEWISE SOFTWARE, INC.,
Case No. 2:10-CV-859 TS
This matter is before the Court on Plaintiff Quest Software, Inc.’s (“Quest”) Motion to
Exclude Prior Art References Listed in Centrify’s Incomplete Response to Interrogatory No. 8.
In its Motion, Quest asks the Court to preclude Defendant Centrify Corporation (“Centrify”)
from relying on prior art references and combinations for which Centrify has not provided the
information requested in Quest’s Interrogatory No. 8. Through its Motion, Quest asks this Court
to impose upon the parties rules that have not been adopted by this Court and seeks to avoid the
procedures set out in the Federal Rules of Civil Procedure when incomplete interrogatory
responses are given. For the reasons discussed below, the Court will deny Plaintiff’s request.
This is a patent infringement case, wherein Defendant Centrify contends that the claims
of the patent in suit are invalidated by alleged prior art references. During discovery, Quest
served an interrogatory on Centrify (Interrogatory No. 8) requesting that Centrify identify each
prior art references or combination of references that allegedly invalidates each asserted claim
along with a detailed invalidity claim chart that shows where each prior art reference discloses
the limitation in each patent claim.
Centrify responded to Interrogatory No. 8 with invalidity claim charts for five prior art
references and combinations, and identified approximately 340 other prior art references. The
parties then engaged in discussions concerning amendments to the interrogatories. Since its
original response, Centrify has provided two supplemental responses to Interrogatory No. 8. The
latest version includes more than 950 pages of claim charts. Both of these supplemental
responses were provided within the discovery period, with the latest occurring on the final day of
In its Motion, Quest seeks to limit Centrify to those prior art references and combinations
that Centrify charted against the claims of the patent in suit. Quest seeks an order from the Court
precluding Centrify from relying on the other identified, but uncharted, references and
combinations. In support of its Motion, Quest points to courts where local patent rules have been
adopted requiring the disclosure of invalidity claim charts by a specified date. In such districts,
courts preclude reliance on invalidity contentions not identified within the prescribed deadlines.1
This, Court, however, has not adopted any such local rules. Therefore, Quest’s reliance on case
law from those districts is unavailing.
Without local rules governing the disclosure of invalidity claim charts, the Court turns to
the Federal Rules of Civil Procedure. Rule 33 governs the use of interrogatories.2 Rule 26(e)
requires a party to supplement its response to interrogatories.3 As set forth above, Centrify has
responded to Quest’s interrogatory and has provided supplementation within the fact discovery
deadline. When a party provides an incomplete answer to an interrogatory, a motion to compel
may be brought pursuant to Rule 37(a)(3).4 If the motion is granted and the party fails to comply,
sanctions may be entered.5 This is the appropriate procedure if Quest believes that Centrify’s
See Fleming v. Escort, Inc., 2011 WL 1542126, at *1 (D. Idaho April 21, 2011)
(applying Local Patent Rule 3.3); Realtime Data, LLC v. Packeteer, Inc., 2009 WL 4782062, at
*2 (E.D. Tex. Dec. 8, 2009) (applying Local Patent Rule 3-3).
Fed.R.Civ.P. 37(a)(3)(B)(iii); Fed.R.Civ.P.(a)(4) (“For purposes of this subdivision (a),
an evasive or incomplete disclosure, answer, or response, must be treated as a failure to disclose,
answer, or respond.”). Sanctions may be imposed for a complete failure to respond to
interrogatories. See Fed.R.Civ.P. 37(d). However, “[t]he provisions of Rule 37(d) with regard to
interrogatories do not apply for anything less than a serious or total failure to respond to
interrogatories.” 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2291 (3d ed. 2010) (quotation marks and citation omitted). This is not what
response to Interrogatory No. 8 is insufficient, as is set out in the very cases Quest cites in
support of this Motion.6
The Court wishes to emphasize that it will not permit “litigation-by-ambush”7 and will
not permit the use of undisclosed evidence. However, the Court cannot find that this is what has
occurred here. Rather, Centrify responded to Quest’s Interrogatory No. 8 and has supplemented
that response. If Qwest believes that these responses are incomplete, it may file a Motion to
Compel. Therefore, the Court will deny the Motion.
It is therefore
ORDERED that Plaintiff’s Motion to Exclude Prior Art References Listed in Centrify’s
Incomplete Response to Interrogatory No. 8 (Docket No. 85) is DENIED.
The hearing set for September 27, 2011, is STRICKEN.
DATED August 25, 2011.
BY THE COURT:
United States District Judge
See Eli Lilly & Co. v. Wockhardt Ltd., 2010 WL 2195436, at *1 (S.D. Ind. May 27,
2010); BASF Catalysts LLC v. Aristo, Inc., 2009 WL 187808, at *1 (N.D. Ind. Jan. 23, 2009).
Docket No. 96 at 3.
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