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Kimberly-Clark Worldwide, Inc v. First Quality Baby Products

July 25, 2011

KIMBERLY-CLARK WORLDWIDE, INC., PLAINTIFF,
v.
FIRST QUALITY BABY PRODUCTS, LLC, FIRST QUALITY PRODUCTS, INC., FIRST QUALITY RETAIL SERVICES, LLC,
AND FIRST QUALITY HYGIENIC, INC.,
DEFENDANTS. FIRST QUALITY BABY PRODUCTS, LLC,
FIRST QUALITY PRODUCTS, INC., FIRST QUALITY RETAIL SERVICES, LLC,
AND FIRST QUALITY HYGIENIC, INC., COUNTERCLAIM PLAINTIFFS, V. : KIMBERLY-CLARK CORPORATION,
KIMBERLY-CLARK WORLDWIDE, INC.,
AND KIMBERLEY-CLARK GLOBAL SALES, LLC, COUNTERCLAIM DEFENDANTS.



The opinion of the court was delivered by: Mag. Judge Carlson

(Judge Caldwell)

MEMORANDUM OPINION AND ORDER

I. Statement of Facts and of the Case

This case is a complex commercial patent and anti-trust lawsuit, which involves issues of invention and incontinence. The parties in this litigation manufacture, produce and market a wide array of adult incontinence products and baby diapers. The litigants are now embroiled in a lawsuit examining issues relating to the validity and alleged infringement of various competing patents for the incontinence products which they manufacture and market. At the direction of the district court, one discrete discovery aspect of this broader dispute was referred to the undersigned for resolution.

This discrete issue relates to a motion to compel discovery filed by Kimberly-Clark Worldwide (hereafter K-C), (Doc. 386), which seeks to compel production of the following detailed financial information from First Quality Baby Products (hereafter First Quality) as set forth in plaintiffs' Interrogatory No. 17, which states in part as follows:

For each baby diaper and wearable incontinence product of First Quality sold since March 12, 2003, separately identified by the product IP Number, FQRKIP Number and/or 5-byte code, provide the following information: the product code, the annual sales in dollars, the annual sales in volume (number of products), the cost of manufacture, and the amount of all other (including variable) costs associated with each such product.Additionally, identify each individual furnishing information used in the response to this Interrogatory, or knowledgeable about such information, and all documents consulted, used, or reviewed in formulating the answer. (Doc. 387-2)

Initially, noting that the interrogatory could be construed as requiring First Quality to produce detailed financial data relating to more than 300 separate lines of products it produced over an eight year period, many of which have not been alleged to infringe upon any K-C patents, First Quality objected to this interrogatory on the grounds that it was over-broad and unduly burdensome. (Doc. 392) In response, KC has now asserted: "that K-C is seeking summary information only for First Quality's potentially infringing protective underwear, sleep pants and baby diapers." (Doc. 396, p.2) With its request narrowed in this fashion, K-C seeks an order directing compliance with this interrogatory. The parties have fully briefed this issue, and it is now ripe for resolution. (Docs. 386, 387, 392, and 396)

For the reasons set forth below, the plaintiffs' motion to compel will be granted, in part, and the defendants will be directed to comply with Interrogatory No. 17 with respect to those product lines that K-C has specifically identified as infringing in this lawsuit. In all other respects the motion to compel will be denied.

II. Discussion

Several basic guiding principles inform our resolution of the instant discovery dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs motions to compel discovery, and provides that:

(a) Motion for an Order Compelling Disclosure or Discovery

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. . . Fed. R. Civ. P. 37(a).

The scope of what type of discovery may be compelled under Rule 37 is defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides as follows:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery ...


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