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September 23, 2004.


The opinion of the court was delivered by: DAVID COAR, District Judge


Minuteman International, Inc. ("Minuteman" or "Plaintiff") has filed suit against Nilfisk-Advance A/S and Nilfisk-Advance, Inc. (collectively, "Nilfisk" or "Defendants"), alleging that Defendant infringed U.S. Patent No. 4,759,094 (the "'094 patent") by manufacturing and selling AquaMax floor scrubbing machines. On October 30, 2003, this Court held a hearing in accordance with Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-81 (Fed. Cir. 1995), and subsequently construed the claims at issue in this case in its December 9, 2003 Memorandum Opinion and Order. Presently before this Court is Defendants' motion for summary judgment of noninfringement, and Defendants' motion to strike several of Minuteman's documents filed in opposition to Nilfisk's motion for summary judgment. For the reasons set forth below, Defendants' motion to strike is DENIED; Defendants' motion for summary judgment of noninfringement is GRANTED. DEFENDANTS' MOTION TO STRIKE

Before addressing Defendants' motion for summary judgment, the Court must address Defendants' Motion to Strike. Nilfisk argues that based upon Minuteman's untimely filings and failure to produce certain evidence, the following documents should be stricken: (1) the expert report of Gary E. Palmer ("Palmer"), including its exhibits; (2) the supplemental expert report of Palmer, including its exhibits; (3) the declaration of Jesse V. Mondigo ("Mondigo"), including all exhibits; and (4) all arguments in Minuteman's opposition brief and all undisputed facts in Plaintiff's L.R. 56.1(b)(1) Statement that rely on the foregoing three documents for factual support. Nilfisk's arguments for the exclusion of these documents will be addressed in turn.

  I. Palmer's Supplemental Expert Report

  Nilfisk argues that Palmer's supplemental expert report should be stricken, because its late service violated the Court's scheduling order and the Parties' agreed deadline for expert disclosures, January 6, 2004. On January 19, 2004, Nilfisk's counsel took the deposition of Gary E. Palmer, which included questions about his expert report. Three days later, Nilfisk served Minuteman's counsel with the expert witness report of Richard F. Wulff, Nilfisk's rebuttal expert. On March 15, 2004, Plaintiff submitted, along with its memorandum opposing summary judgment, Palmer's supplemental expert report. Nilfisk contends that because Palmer's supplemental report references four new drawings by Jesse Mondigo that were not included in Palmer's first expert report (which according to Palmer, replaced the drawings attached to his first expert report), Minuteman is disclosing an entirely new theory of infringement after the expert discovery deadline has passed. Rule 26(e)(1) of the Federal Rules of Civil Procedure provides guidance for the filing of supplemental expert reports. Rule 26(e)(1) states:
A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of an expert, and any additions to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.
Therefore, the Court must look to the deadline for the Parties' Fed.R. Civ. P. 26(a)(3) ("Rule 26(a)(3)") disclosures. Rule 26(a)(3) states, "[u]nless otherwise directed by the court, these disclosures must be made at least 30 days before trial." The Court did not set a specific deadline for the Parties' Rule 26(a)(3) disclosures; therefore, any disclosures must have been made 30 days prior to trial. Minuteman submitted Palmer's supplemental expert report on March 15, 2004. At the time that Minuteman submitted Palmer's supplemental expert report, the parties' trial was set for July 2, 2004. Consequently, Palmer submitted his supplemental expert report in accordance with the federal rules of civil procedure. Therefore, Plaintiff will be allowed to use Palmer's supplemental expert report as evidence in its opposition to Defendants' motion for summary judgment.

  Additionally, Nilfisk contends that Palmer's expert report should be stricken because Minuteman failed to seasonably supplement its response to Nilfisk's interrogatory number 4 before the close of fact or expert discovery. Rule 26(e)(2) provides guidance for supplementary interrogatory responses: A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

 "The duty to supplement discovery requests lingers on without solicitation by the requesting party." Allen v. Bake-Line Products, Inc., No. 98 C 1119, 2001 WL 883693 at *1 (N.D. Ill. 2001) (citing Marianjoy Rehab. Hosp. v. Williams Elec. Games, Inc., No. 94 C 4918 1996 WL 411395 (N.D. Ill. 1996)). If a party fails to supplement its interrogatory responses, the court may elect to exclude "all evidence related to the non-supplemented subject." Heidelberg Harris, Inc. v. Mitsubishi Heavy Industries, Ltd., No. 95 C 0673, 1996 WL 680243 at * 8 (N.D. Ill. 1996) (citing Holiday Inns, Inc. v. Robertshaw Controls Co., 560 F.2d 856, 858 (7th Cir. 1977)). Fed.R. Civ. P. 37(c)(1) provides the procedure for addressing a party's failure to supplement an interrogatory response under Rule 26(e)(2). In pertinent part, Rule 37(c)(1) states:
A party that without substantial justification fails to . . . amend a prior response to discovery as required by . . . Rule 26(e)(2) is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed.
Nilfisk was aware of the information that would have been in a supplemental interrogatory response when Minuteman filed Palmer's supplemental expert report, and this Court has determined that the information within that expert report was timely. Consequently, Nilfisk was not prejudiced by Minuteman's failure to supplement its interrogatory responses. Therefore, the Court will not exclude Palmer's expert report for failure to seasonably supplement his response interrogatory number 4. II. Defendants' Request to Exclude Certain Evidence Because of Minuteman's Failure to Produce The AquaMax Machine That Was the Basis of its Expert Reports

  Defendants contend that all of the evidence that serves as factual support for Minuteman's infringement theories and expert reports relies on an AquaMax machine that was tested by Plaintiff's expert Mondigo in December 2002 and by Plaintiff's expert Palmer in July, August and December of 2003. All of the drawings submitted by Minuteman in support of its infringement arguments have been based on Mondigo's observations of this particular machine. Nilfisk has repeatedly requested to inspect this machine, yet Minuteman has repeatedly responded that the machine was unavailable. As of this date, Minuteman has not produced the machine. Defendants argue that they have been prejudiced by Plaintiff's failure to produce the machine it observed, as Defendants are unable to determine whether that machine was altered in any way, and if so, whether those alterations affected the machine's operations. Consequently, Defendants argue that Palmer's original and supplemental expert reports, and Mondigo's declaration (and all exhibits attached thereto) should be stricken.

  "A party has a duty to preserve evidence over which it had control and `reasonably knew or could reasonably foresee was material to a potential legal action.'" Wiginton v. Ellis, No. 02 C 6832, 2003 WL 22439865 at *4 (N.D. Ill. 2003) (quoting China Ocean Shipping (Group) Co. v. Simone Metals Inc., 1999 WL 96643 at *3 (N.D. Ill. 1999)); see also Kucala Enterprises, Ltd. v. Auto Wax Co., Inc., No. 02 C 1403, 2003 WL 21230605 at *4 (N.D. Ill. 2003). Courts are authorized to sanction a party for discovery violations, including the failure to preserve evidence that is material to the parties' litigation. Unquestionably, the machine upon which Minuteman bases its infringement theory is crucial to this litigation. This is particularly so when a key dispute between the parties is the operation of the AquaMax machine.

  "Courts generally have broad discretion in deciding the appropriate sanction for a party's discovery violation, and the type of sanction administered generally depends on the unique factual circumstances of the case." Kucala, 2003 WL 21230605 at *4 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976)). The court should impose sanctions that are proportionate to the offending conduct. Kucala, 2003 WL 21230605 at *4 (citing United States v. Golden Elevator, Inc., 27 F.3d 301, 303 (7th Cir. 1994)). Because this machine is such crucial evidence, the exclusion of any evidence resulting from Minuteman's observation of the machine's operations would essentially leave Plaintiff with no evidence to defeat Nilfisk's motion for summary judgment, thereby resulting in a default judgment for Defendants. The Seventh Circuit has directed that the harsh sanction of default be reserved for extreme circumstances, Ellingsworth v. Chrysler, 665 F.2d 180, 185 (7th Cir. 1981), though also noting that less drastic sanctions need not be a prerequisite for entry of default or dismissal. Halas v. Consumer Services, Inc., 16 F.3d 161, 165 (7th Cir. 1994). However, courts usually reserve the harsh sanction of default when there is a "finding of contumacious conduct, dilatory tactics, the failure of less drastic sanctions, bad faith, willfulness, or fault." China Ocean Shipping (Group) Co., 1999 WL 966477 at *2 (citing Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir.) modified on other grounds, 87 F.3d 202 (1996)). Further, without a prior court order directing Minuteman to produce the machine in question, the exclusion of all evidence in support of Plaintiff's motion for summary judgment would be drastic. Consequently, the Court will not exclude the evidence that is based on Minuteman's observations of the AquaMax machine that it has failed to produce.

  III. Additional Arguments by Defendant To Exclude Original Palmer Expert Report

  Nilfisk contends that Palmer's original expert report should be stricken pursuant to Fed.R. Civ. P. 26(a)(2)(B) and Fed.R.Evid. 702. Defendants maintain that one of the primary problems with Palmer's original expert report is that it relied heavily on Mondigo's first set of drawings. However, in his supplemental report, Palmer withdraws Mondigo's drawings that accompanied the first report, and attempts to replace them with the drawings of the supplemental report. Thus, Defendants argue, Palmer concedes that Mondigo's first set of drawings are unreliable.

  Additionally, Nilfisk contends that Palmer admitted in his deposition that he never had access to: (a) any of the several depositions of Nilfisk's engineers who described in detail how the AquaMax worked; (b) the AquaMax bladder that Nilfisk produced to Minuteman; or (c) the technical drawings of the AquaMax that Nilfisk produced prior to Palmer's deposition. Further, Nilfisk contends that Mondigo's drawings submitted in Palmer's supplemental expert report are inconsistent with the drawings submitted in Palmer's original expert report. Defendants note that despite the inconsistencies between the two reports, in its memorandum in opposition to Nilfisk's motion for summary judgment, Minuteman cites Palmer's original expert report, which was based largely on Mondigo's original drawings. Finally, Nilfisk argues that a comparison of Minuteman's responses to Nilfisk's Interrogatory Numbers 4 and 15 with Palmer's original expert report show, in Nilfisk's opinion, that Palmer did not write his own report. Defendants note that Palmer's report and Minuteman's interrogatory response Number 4 are formatted in the same manner, with two columns, and that the left column in both documents contains the claim language, while the right column contains Minuteman's allegations or Palmer's opinions. Finally, Nilfisk notes that Palmer admitted during his deposition that Minuteman's counsel typed the report for him and that the whole process took around "two hours." See Gary Palmer Dep. Tr., p. 108, line 4-p. 110, line 9.

  Fed.R. Evid. 702 permits expert testimony only if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Pursuant to Fed.R. Evid. 702, an expert may testify if: (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Id. "[A] district court judge is to act as a `gatekeeper' for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability." Dhillon v. Crown Controls, Corp., 269 F.3d 865, 869 (7th Cir. 2001) (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993)).

  Undoubtedly, Palmer's supplemental expert report renders portions of his original expert report obsolete. However, the entire original expert report is not unreliable. Consequently, the Court will not strike the original expert report from the record. Additionally, Nilfisk's argument that Palmer's original expert report should be stricken because it is formatted in the same manner as his interrogatory responses lacks merit. While there may be some inconsistencies between ...

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