It’s always a looming question in patent litigation – who goes first in responding to contention interrogatories and how much information must be provided? Special Master Bechtle addressed just this issue in XPoint Technologies, Inc. v. Intel Corporation, C.A. No. 09-26-SLR, Special Master Order 14 (D. Del. June 25, 2010). In this case, the parties simultaneously exchanged responses to contention interrogatories, however, defendant argued that while it provided full and complete answers to the contentions plaintiff propounded on it, that plaintiff only provided some information and then waited until after receipt of defendant’s contentions to use that information and then supplement its own responses. Id. at 2. First, Special Master Bechtle stated that although the court’s scheduling order required that responses to contention interrogatories be filed on or before a date certain, there was no requirement that the responses be exchanged simultaneously. Id. at 3. Second, the Special Master disagreed with the plaintiff’s “theory that use of the word ‘first’ and the other words by the court in ¶2(c)(3) of its scheduling order means that a party with Rule 33 interrogatory answering responsibility can answer those interrogatories by providing a partial response.” Id. at 5. Rule 33 requires that the interrogatory “be answered completely and truthfully” and “must use all of the information a party has at that time…that allows the interrogatory to be fully responded to. The plain meaning of the Rule does not allow a knowing half answer, or a knowing partial answer, or some sort of temporary response.” Id. at 6. In this case, however, the defendant did not show any harm by plaintiff’s failure to comply to warrant dismissal of the claims and issues concerning products other than those included in its original interrogatory response. Id. at 12.
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