Special Master B. Wilson Redfearn recently considered plaintiff’s motion to compel a defendant’s response to its Interrogatories 1 and 10, which requested the following:
–Interrogatory 1: Identify and describe in detail your expectations of sales and actual sales of the Relevant Products or Relevant Services and mobile devices.
–Interrogatory 10: Describe all communications between you and any mobile network operator (e.g., Sprint, U.S. Cellular) regarding the sale or potential sale of Relevant Products.
EON Corp. IP Holdings, LLC v. Flo TV Inc., et al., C.A. No. 10-812-RGA (D. Del. Jul. 23, 2013) (emphasis added). As Special Master Redfearn explained, “the case has been bifurcated,” but plaintiff argued that the “information sought through these interrogatories is relevant to the infringement issues because it is probative of commercial success, a secondary consideration of nonobviousness.” Id. at 1. Defendant, on the other hand, argued that before it is required to respond, plaintiff must “first show a specific nexus between the commercial success of the product and the alleged infringing features.” Id. at 3. Special Master Redfearn disagreed with defendant’s contention and found that plaintiff “is allowed to propound discovery for the purpose of developing factual information which could assist in showing that its invention is valid, i.e., it can propound discovery which it reasonably believes will permit it to argue at trial that there was commercial success, which supports its position on nonobviousness (rebutting the invalidity contentions).” Id. at 4.
Nevertheless, Special Master Redfearn found that the scope of Interrogatory 1 should be narrowed. Specifically, Special Master Redfearn explained that defendant “must furnish actual sales information concerning its ‘Relevant Products,’” but “its response can be limited to (1) sales which involve products using the accused features; and (2) products which were sold within thirty-six months after they were put on the market.” Id.
Further, Special Master Redfearn concluded that Interrogatory 10 should be denied as “ambiguous and overbroad.” Id. at 5. He explained that “[i]n order for an interrogatory (or interrogatories) of this nature to be properly formed for a company the size of [defendant], with a national and international sales force, the Plaintiff would have to set out the type of communications to which it refers; narrow the persons (or at least the internal entities) from whom the information is being sought; and set out the relevant time period.” Id. at 4-5. The Special Master noted that “[e]ven then, there could well be valid objections on the basis of relevancy.” Id. at 5.