Free Letter - District Court of Delaware - Delaware

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" 4 Case 1 :07-cv—00680-IVIPT Document 59 Filed 05/28/2008 Page 1 of 3
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May 28, 2008
VIA E-FILING
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
844 N. King Street
Wilmington, DE 19801
Re: Innovative Patents, L.L.C. and F orcefield, LLC v. Brain—Pad, Inc.,
Docket N0. 07-cv-680-MPT
Dear Judge Thynge:
Plaintiffs Innovative Patents, L.L.C. and Forecefield, LLC ("lrmovative") submit this
letter in opposition to defendant Brain-Pad, Inc.'s May 23, 2008 letter requesting leave from the
Court to exceed the number of interrogatories permitted by Federal Rule of Civil Procedure
("FRCP") 33(a)(l). On April 28, 2008, Innovative's counsel received an e-mail from Brain—Pad
purporting to serve Defe11dant's First Set of lnterrogatories ("Defendant's lnterrogatories"), which
contained 50 interrogatories, inclusive of subparts. On May 2, 2008, we sent defendant a letter
objecting to the interrogatories as contrary to FRCP 33(a)(l), which provides in relevant part
that, "a party may serve on any other party no more than 25 written interrogatories, including all
discrete subparts." We informed Brain-Pad that the interrogatories are unduly burdensome, and
suggested that defendant revise the interrogatories to conform to the rules. Brain—Pad has instead
opted to ask Your Honor to approve retroactively its excessive number of interrogatories.
The fact that plaintiffs are being asked to answer twice the ntunber of interrogatories
permitted by FRCP 33 is inherently burdensome. Plaintiffs' First Set of Interrogatories
("Plaintiffs' Interrogatories") to Defendant, served March 5, 2008, contained only eight
numbered interrogatories. Plaintiffs have found the number of interrogatories permitted by the
Rules to be adequate, and defendant has made no showing as to why the extra interrogatories it
seeks are necessary.2 Rule 33 is clear that no party is permitted to serve more than 25
I Defendant's May 23 letter submission is silent as to the total number of interrogatories in Deferidant's
Interrogatories. However, Brain-Pad's May 22, 2008 Motion Pursuant to Fed. Rule Civ. P. 26(b)(2) and 33(a)(l) for
Leave to Serve in Excess of 25 Interrogatories (D.I. 54), which the Court ordered defendant to withdraw on May 23
because it failed to comply with Paragraph 3(e) of the Scheduling Order, provided that "[t]he total number of
interrogatories, including subparts, in BrainjPad's first set of interrogatories is 50." Mot. il 6.
2 Defendant's counsel's representation that Brain-Pad served an excessive number of interrogatories because
counsel was not aware of a revision to D. Del. LR 26.l(b) is irrelevant. While such an error may be understandable,
it does not justify the relief defendant seeks. Snyder v. US., 2007 WL 1695651, at *1 (D. Del. Feb. 12, 2007) ("The
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‘ ' 5 Case 1 :07-cv—00680-IVIPT Document 59 Filed 05/28/2008 Page 2 of 3
Hon. Mary Pat Thynge
May 28, 2008
Pdgez
interrogatories unless otherwise stipulated by the parties or ordered by the Court. As stated by
the Advisory Committee Notes to the 1993 Amendment to FRCP 33, the requirement that a party
obtain the Court's approval to exceed the 25 interrogatory limit is designed to "provide judicial
scrutiny before parties make potentially excessive use of this discovery device" (emphasis
added).3
Defendant cites a North Carolina case, Capczcchione v. Charlotte-Mecklenburg Schools,
182 F.R.D. 486 (W.D.N.C. 1998), as providing a standard the Court should apply in determining
whether to allow a party to serve additional interrogatories. Among the Capacchione
requirements is that the moving party must make "an express showing of good cause," i.e., that
the extra interrogatories are more beneficial than burdensome. Capacchione, 182 F .R.D. at 492.
Notably, the Capacchiorze court rejected the moving party's request to exceed the allowed
ntunber of interrogatories because the movant's papers failed to "adequately set forth why [the]
additional interrogatories are needed" and failed to "explain the nature or subject matter of the
additional interrogatories." Id.
The Court should reach the same result in the instant case because Brain-Pad has not
made a showing of good cause. Brain-Pad has failed to explain why it needs the additional
interrogatories. Defendant's only argument that good cause exists for the additional
interrogatories is that "this is a patent case." Innovative does not believe that anything about
patent cases inherently requires parties to serve more than 25 interrogatories. Plaintiffs have
fotmd 25 interrogatories to be adequate. But even if defendant believed that patent cases
inherently require more discovery than other kinds of cases, they should have raised the issue
during discussions about the scheduling order. D. Del. LR 16.1(b)(2) contemplates that the
expansion- of the number of interrogatories the parties will serve is something to be considered at
the Rule 16(b) conference. Defendant failed to raise the issue at that time. In any event, the time
for defendant to seek approval of its excessive ntunber of interrogatories was before they were
served.
court expects officers of the court to follow the rules of the court and the Federal Rules of Civil Procedure").
Counsel's error can be cured easily by revising the interrogatories to comply with FRCP 33.
3 This is not the first time defendant has ignored discovery procedures in this action. Defendant's responses
to Plaintiffs' Interrogatories were due on April 4, 2008. Several days after the due date, on April 7, 2008,
defendant's counsel contacted counsel for Innovative to discuss an extension for the interrogatory responses.
Although the parties were unable to agree to the terms of an extension, defendant's counsel nevertheless failed to
serve its interrogatory responses until May 1, 2008, nearly four weeks ajier they were due. Defendant's failure to
comply with the Rule 33(b)(2) 30-day deadline meant that plaintiffs did not have the benefit of defendant's
interrogatory responses when they provided their Confidential Mediation Statement to the Court on April 29.
Similarly, defendant served its responses and objections to plaintiffs' Rule 34 document requests, due April
21, 2008, jive days late on April 25, 2008. Defendant never requested an extension from plaintiffs or from the Court
and never provided an explanation for its failure to serve its responses and objections on time. It is in this context
that plaintiffs have refused to accept double the number of interrogatories permitted by Rule 33 alter defendant
failed to seek a stipulation concerning the extra interrogatories before they were served.
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I-Ion. Mary Pat Thynge
May 28, 2008
Page3
Defendant's argument that it should be allowed 50 interrogatories because there are two
different plaintiffs is makeweight. This argument ignores the clear language of Rule 33(a) and
belies common sense. By defendant's logic, had there been four plaintiff entities, it would be
appropriate for all four plaintiffs to respond to 100 interrogatories.
For the foregoing reasons, defendant's motion to exceed the limitations of FRCP 33(a)(l)
should be denied.
Respectfully submitted,
{
J. Clayton ey (#4 78)
J CA/lak
cc: John C. Connell, Esq. (via Emaib
Charles J. Brown, III, Esq. (via Emaib
Joseph J. Fleischman, Esq. (via Emaib
William R. Robinson, Esq., (via Email)
Christopher S. Casieri, Esq. (via Emaib
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