The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge
This matter comes before the Court on the Defendant Sukup Manufacturing Co.'s (Sukup) Motion to Compel Plaintiff to Answer Interrogatories Nos. 1, 7, and 10 and Verify all Supplemental Answers (d/e 51) (Motion). For the reasons set forth below, the Motion is ALLOWED in part.
On August 22, 2005, Sukup served Plaintiff GSI Group, Inc. (GSI) with its first set of interrogatories. Motion, Exhibit A, Sukup Manufacturing Co.'s First Set of Interrogatory Nos. 1-10 to the GSI Group, Inc. (Interrogatories). Sukup asked GSI in Interrogatory 1:
State fully, on a yearly basis, according to model designation, code designation or other identifying designation, the accounting information which shows, proves and/or relates to GSI sales and profits for each year since January 1, 1999, for each kind of accused products; including stating:
(a) the total number of units of the accused product(s) sold, and the sales dollars and unit sales price for such units for each accounting period;
(b) the total fixed cost and variable costs for accounting period;
(c) explaining which costs are assigned or allocated or otherwise pro-rated to sales of said products including explaining in detail the formula or method used to determine the amount assigned, allocated or pro-rated; and
(d) stating the marginal profit for each accounting period. Interrogatories, at 3.
In response, GSI stated that its expert witness reports would provide information responsive to this interrogatory. GSI also provided documents from which GSI stated that Sukup could secure the requested information. Sukup objected that GSI should be required to identify the specific documents that will provide the information requested.
GSI has now provided a verified response that identifies trial balances by specific bates page numbers. Opposition to Defendant's Motion to Compel (d/e 51) Plaintiff to Answer Interrogatory Nos. 1, 7 and 9 and to Verify all Supplemental Interrogatory Answers (d/e 62) (Opposition), Exhibit 1, The GSI Group, Inc.'s First Supplemental Responses to Sukup Manufacturing Company's First Set of interrogatory Nos. 1-10 to the GSI Group, Inc. (Supplemental Interrogatory Response), at 3. The Supplemental Interrogatory Response also lists 33 computer CD disks containing invoices for all sales for the last six years of products covered by the patents-in-suit. The response states that, "The CDs GSI 22- GSI 20 and GSI 31- GSI 33 contain summaries of the sales of the patented products sold by GSA for the last 6 years and include the selling price and the cost of such products so that the profit margins on these products may be determined." Supplemental Interrogatory Responses, at 3-4.
Sukup asked GSI in Interrogatory No. 7, "State the reasons why GSI did not pursue an infringement suit against SUKUP for SUKUP's grain bin access door and grain dryer burner with burner cone prior to January of 2005." Interrogatories, at 5. GSI responded,
This interrogatory seeks information which is privileged and/or involves attorney work product. Therefore, GSI chooses not to waive its attorney/client privilege by answering this interrogatory.
As discussed with Sukup at settlement conferences held during the spring of 2005, while GSI did suspect that Sukup's burner cone did infringe the '525 patent, GSI did not have actual evidence as to the construction and operation of Sukup's burner cone until after the Complaint in this litigation had been filed and prior to the time the Amended Complaint was filed. Supplemental Interrogatory Response, at 13-14.
Sukup asked GSI in Interrogatory No. 10, Set forth a complete chronology of the inventions claimed in the patents-in-suit from the time of conception to the present describing all facts which occurred in the development and the date on which they occurred including but not limited to the date of conception, reduction to practice, first public use and/or disclosure, offer for sale, and first ...