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Serving Responses to Contention Interrogatories Just before Discovery Cut-Off Justifies Sanctions

In this patent infringement case, Plaintiff and Counter-defendant Bal Seal Engineering, Inc. (“Bal Seal”) filed a joint stipulation pursuant to Local 37-2 moving to compel Defendant and Counterclaimant Nelson Products, Inc. (“NPI”) to provide further responses to Bal Seal’s Interrogatories. These included contention interrogatories (the “Contention Interrogatories”) seeking “all facts” supporting allegations in NPI’s Second Amended Answer and Counterclaims (“SACC”).

In the joint stipulation, Bal Seal sought to compel responses to twenty interrogatories asking that NPI “state all facts” supporting allegations in its SACC. (Dkt. 129-1 at 11-22 (quoting Contention Interrogatories Nos. 1-11, 16-19, 24-27, and 30).) Bal Seal served the Contention Interrogatories on October 27, 2016 (Nos. 1-11) and May 3, 2017 (Nos. 16-19, 24­27, and 30), yet had received no substantive response as of the Motion’s December 2017 filing (Dkt. 129-3, ¶¶ 4, 8.).

Rather than respond to the interrogatories, NPI had served objections, which included the following statement: “NPI … objects to this request in that it is premature to answer contention interrogatories at this time and NPI will supplement this response at the close of discovery.” (Dkt. 129-1 at 11-22.)

In the underlying briefing, NPI argued that the Contention Interrogatories were premature, and indicated that it had “promised to answer the subject contention interrogatories substantively at the end of discovery.” (Dkt. 129-1 at 22.) When Bal Seal filed the Motion, the discovery cut-off was February 9, 2018. (Id. at 23; Dkt. 107 (order setting discovery cut-off).) In meet and confer correspondence, NPI stated that it would only serve substantive responses on that date. (Dkt. 129-1 at 23.) In opposing the Motion, NPI suggested “to resolve” the issue that it would serve responses by February 5, 2018, four days before the operative cut-off. (Id. at 25.)

The district court did not agree with this tactic and rejected NPI’s proposal, ordering NPI to serve responses within 7 days of the Motion’s hearing date. (Dkt. 134 at 3.) In doing so, the district court also noted (1) that NPI had been on notice of the Contention Interrogatories for months; (2) that it should have been aware of facts supporting its allegations at the time that it filed its pleadings; and (3) that Bal Seal needed to have a reasonable opportunity to review NPI’s responses prior to the then-operative motion cut­off (February 16, 2018) in order to seek relief if necessary. (Id. at 2.)

The district court also ordered further submissions on whether NPI should be sanctioned for this conduct. After reviewing the relevant case law cited by NPI, the district court concluded that sanctions were appropriate: “[b]ased on this case law, reasonable people could have differed about whether NPI needed to respond to the Contention Interrogatories within the normal 30-day period, but there is no genuine dispute that NPI’s refusal to respond to those demands until the day that discovery closed—thereby preventing Bal Seal from following up on NPI’s responses—was improper. Because NPI advanced this position both in meet and confer efforts and briefing, requiring Bal Seal to incur the cost of filing a motion to compel, cost-shifting sanctions are appropriate.”

Bal Seal Engineering, Inc. v. Nelson Products, Inc., Case No. 8:13-cv-01880-JLS-KESx (C.D. Cal. Feb. 12, 2018)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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