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Civix-Ddi, LLC v. Hotels.Com

January 19, 2011

CIVIX-DDI, LLC, PLAINTIFF,
v.
HOTELS.COM, L.P. AND HOTELS.COM GP LLC, DEFENDANTS.



The opinion of the court was delivered by: Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Civix-DDI, L.L.C., has filed a motion to strike what it characterizes as Defendants' "new defenses and witnesses." (R. 655.) The Court held a status hearing on October 26, 2010, and subsequently ordered the parties to supplement discovery by November 15, 2010.*fn1 (R. 652.) The instant motion concerns Defendants' supplemental objections and responses to Plaintiff's interrogatories 1-5, 8, 12-13, and 15. (R. 655 at 1.) Plaintiff specifically objects to Defendants' disclosure of five Hotels.com employees and "one or more persons associated with Google, Inc.," as well as to Defendants' invalidity defense based on the "T-III Real Estate System" and its license-and-patent-exhaustion defense based on a 2008 "Google Maps API Premier Purchase Agreement." (Id.) For reasons explained below, the Court grants Plaintiff's motion in part and denies it in part.

BACKGROUND

The Court presumes familiarity with its previous orders in this litigation. See, e.g., CivixDDI, L.L.C. v. Hotels.Com, L.P. et al., No. 05-CV-6869, 2010 WL 4386475 (N.D. Ill. Oct. 25, 2010); Civix-DDI, L.L.C. v. Hotels.Com, L.P. et al., No. 05-CV-6869, 2010 WL 431467 (N.D. Ill. Feb. 1, 2010). The Court issued its claim-construction ruling on October 25, 2010, and subsequently ordered the parties to supplement discovery by November 15, 2010. (R. 652.) On November 23, 2010, Civix filed the instant motion to strike the "new defenses and witnesses" that Defendants allegedly disclosed in their November 15, 2010, supplementation. (R. 655.)

LEGAL STANDARD

Federal Rule of Civil Procedure 26(e) provides that a "party who has . . . responded to an interrogatory . . . must supplement or correct its . . . response: (A) in a timely manner if the party learns that in some material respect the disclosure or response 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; or (B) as ordered by the court." Fed. R. Civ. P. 26(e)(1). Rule 37(c) provides that, "[i]f a party fails to provide information or identify a witness as required by Rule . . . 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Under Rule 37(c)(1), "the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless." Westefer v. Snyder, 422 F.3d 570, 584 n.21 (7th Cir. 2005) (quoting Salqado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)).

ANALYSIS

I. Hotels.com Appropriately Supplemented its Response to Interrogatory No. 1

Civix's Interrogatory Number 1 provided: Identify each person presently and/or formerly employed or otherwise associated with Hotels.com who has or had responsibility, in whole or in part, for the following functions at any time: (a) the conception, design and development of the accused Hotels.com services; (b) the conception, design and development of the databases, applications, software and hardware used in the accused Hotels.com services; (c) the implementation, operation and maintenance of the accused Hotels.com services; (d) the marketing of the accused Hotels.com services; (e) the sale of the accused Hotels.com services; and (f) the overall business of Hotels.com with respect to the accused Hotels.com services.

(R. 655-1 at 3.) Hotels.com provided a supplemental response to this interrogatory on November 15, 2010, naming Matt Brown, Skip Masonsmith, Terry Meadows, Pascal Pissot, and John Sansom. (Id.) Defendant stated that it believed that these individuals "have information regarding the accused hotel location-searching service made available at the www.hotels.com and www.hoteles.com websites." (R. 655-2 at 3.)

Civix observes that the above-named individuals are Hotels.com's own employees, questions why Hotels.com failed to identify those employees earlier, and submits that it would be unfairly prejudicial to allow Defendants to rely on them. (R. 655 at 8-9.) Civix also points out that it has not been able to depose the newly identified people. (Id. at 9.)

In its response, Hotels.com explains that supplemental disclosure of the five employees is proper because its "technical team has experienced recent turnover, and the subject individuals were disclosed because they represent the new team that has now assumed the responsibilities of previously disclosed, but now departed, Hotels.com employees." (R. 659 at 5-6.) Defendants explain in more detail:

* In November 2010, Matt Brown assumed the responsibilities of previously disclosed and twice-deposed Philippe Tulula, who ...


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