Sure Fit Home Products, LLC v. Maytex Mills Inc.

Background

The parties submitted a joint letter seeking resolution of several discovery disputes. The court addressed only issues for which the letter showed that the parties had completed the required meet-and-confer process.

Sure Fit’s discovery requests

The court held that Federal Rule of Civil Procedure 33(b)(4) permits objections to interrogatories. It found that Maytex had not provided enough evidence to show that Sure Fit had agreed to waive objections to the interrogatories discussed by the parties.

Sure Fit also asked the court to order Maytex to answer Sure Fit’s interrogatories without further delay. Maytex responded that neither party had been served with final interrogatories, and Sure Fit did not state whether it had served its interrogatories on Maytex. Because the letter did not provide enough facts to establish that Maytex had failed to respond on time, that part of Sure Fit’s request was denied.

Sure Fit sought documents in six categories. For the categories identified as paragraphs A, B, C, and E, Maytex said it would produce additional documents and did not object to the requests or the requested relief. The court therefore ordered that, except for privilege, objections to producing those documents were overruled or deemed waived. Maytex was required to produce all responsive documents by June 1, 2022, with a written statement identifying the responsive documents by Bates numbers and describing its efforts to locate them. Any privilege log was also due June 1, 2022.

For paragraph D, Sure Fit sought documents concerning shower curtain liners, claiming they were relevant to infringement and damages. The court concluded that those documents were outside the current requests because shower curtain liners were not included in the definition of “Accused Products.” Maytex therefore was not required to produce those documents under the existing requests.

The parties disagreed about whether they had met and conferred regarding paragraph F. The court directed them to meet and confer immediately and allowed any new dispute to be brought to the court under the court’s Individual Practices.

Advice-of-counsel defense

Sure Fit asked the court to prevent Maytex from asserting an advice-of-counsel defense because Maytex allegedly did not comply with Local Patent Rule 10. That rule requires a party relying on an opinion-of-counsel defense to produce or make available the opinion and related documents for which protection was waived within 30 days after the claim-construction order.

The opinion states that Maytex first made the attorney opinion available on July 27, 2021, and later continued producing related documents between January and March 2022. The claim-construction order was issued on October 14, 2021. The court noted that Sure Fit cited no rule or case law supporting preclusion of the defense and did not clearly identify the prejudice caused by the delayed production. Because more than three months remained in discovery after Sure Fit received the documents, and because the court could extend discovery for good cause, the request for sanctions was denied.

Maytex’s fifth set of document requests

Maytex asked the court to address Sure Fit’s objections to Maytex’s fifth set of requests for production. Rule 34(b)(2) requires objections to state their grounds specifically and to say whether responsive materials are being withheld because of the objection.

The court found that Sure Fit’s objections did not say whether responsive documents had been withheld and that Sure Fit had not justified the objections. Accordingly, except as to privilege, the objections were overruled or deemed waived. Sure Fit was ordered to produce all responsive documents by June 1, 2022, provide a written statement identifying responsive documents by Bates numbers and describing its search efforts, and provide any privilege log by that date.

Attorney-client privilege and exhibits

Maytex sought an advance ruling defining the scope of attorney-client privilege for questions it intended to ask at depositions and in proposed interrogatories. The court explained that relevant, nonprivileged factual information learned from an agent—including an attorney—may have to be disclosed. But information provided as part of an effort to obtain legal advice may be treated differently if it was intended to remain confidential. Because the parties’ letter did not provide enough context to determine which situation applied, the request was denied. The parties remained free to seek relief after a deposition or regarding specific interrogatory answers.

Maytex also asked the court to rule that Exhibits 88, 89, and 90 were not privileged. The court stated that it would address that application in a separate memorandum opinion; this order did not resolve it.