Monday, October 19, 2009

Interrogatory Response Spanning 1,500 Pages is Inadequate Disclosure of 3-Page Prior Art Reference

The court granted plaintiff's motion to preclude defendants from relying on an anticipatory prior art reference that was not disclosed until the last day of fact discovery and was buried in 1,500 pages of documents. "To the extent Defendants disclosed the [prior art reference] in a supplemental interrogatory response in advance of the discovery deadline, the disclosure was buried within roughly 1,500 pages of documents that were otherwise identified only by Bates numbers. Defendants cannot reasonably expect Plaintiffs to be on notice of a three page reference -- buried within roughly 1,500 pages of numerically identified documents -- that was neither called out by specific Bates number nor by name. Such identification, or lack thereof, does not qualify as adequate notice of Defendants invalidity contentions."

Laboratory Skin Care Inc. et al. v. Limited Brands Inc. et al.,
1-06-cv-00601 (DED October 14, 2009, Memorandum Opinion) (Farnan, J.)

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